full version - World Organisation Against Torture

Created in 1986, the World Organisation Against Torture (OMCT) is an internationalcoalition of over 260 NGOs in 85 countries, the SOS-Torture network,fighting against torture, summary executions, forced disappearances, and allother forms of cruel, inhuman or degrading treatment.In answer to the increasing number of cases on gender-specific forms of violencecoming from the members of the SOS-Torture Network and other sources,OMCT decided in 1996 to establish the Violence against Women Programme,which addresses and analyses the gender-related causes and consequences of tortureand other forms of violence against women. In every region of the world,women and girls suffer from violence as a result of their gender. Although thedistinct social, cultural and political contexts give rise to different forms of violence,its prevalence and patterns are remarkably consistent, spanning nationaland socio-economic borders as well as cultural identities. Gender has a considerableeffect on the form of the violence, the circumstances in which the violenceoccurs, the consequences of the violence, and the availability and accessibility ofremedies.For the past years, the Violence against Women Programme has been workingaccording to a three-fold strategy. This strategy has involved the issuance ofurgent appeals concerning gender-based violence, the submission of alternativecountry reports on violence against women to the UN Committee on theElimination of Discrimination against Women and mainstreaming a gender perspectiveinto the work of the UN treaty monitoring bodies through the submissionof alternative country reports specifically on violence against women.Violence against Women: 10 Reports/Year 2003for the protection and promotionof the human rights of womenAuthors:Carin Benninger-Budel, Programme ManagerLucinda O’Hanlon, Programme OfficerDirector of Publication: Eric Sottas, DirectorFirst Printing: 2004© 2004 World Organisation Against Torture (OMCT)ISBN 2-88477-073-9Cover design: Thie Reklame,9713 HL Groningen, the Netherlandswww.thie.nlPrinted by Abrax, 21300 Chenôve, FranceWorld Organisation Against Torture (OMCT)P.O. Box 218, rue du Vieux-Billard1211 Geneva 8SwitzerlandTel: 0041 (0)22 809 49 39Fax: 0041 (0)22 809 49 29E-mail: omct@omct.orghttp://www.omct.org

ViolenceAgainstWomenfor the protection and promotionof the human rights of women10 REPORTS / YEAR 2003Carin Benninger-BudelLucinda O'Hanlon

Violence Against Women: 10 Reports / Year 2003AcknowledgementsOMCT would like to especially thank Nadja Houben for herresearch and drafting of the reports on Estonia and Mali, BorisWijkström for his research and participation in drafting of the reportson Turkey and Colombia and Sonia Lavadinho-Henriques and AnaAugusta Nascimento Tôrres for their research and participation in thedrafting of the report on BrazilMoreover, we would also like to thank Akram Chowdhury of theBangladesh Institute for Human Rights for his work on the report onviolence against girls in Bangladesh.The authors also express their sincere gratitude to the followinghuman rights organisations and individuals for their valuable contributionsto the ten reports compiled in this publication:Natalia Abubikirova, Association of Crisis Centers for Women“Stop Violence” (Russia); Marianna Solomatova, Angel Coalition(Russia); Natalia Berdnikova and Galina Grishina, East-WestWomen’s Innovation Projects (Russia); Albina Pashina, Yaroslavna(Russia); Masha Mokhova, Syostri Crisis Center (Russia); LyudmilaAlpern, Moscow Center for Prison Reform (Russia); Elena Mashkova,FEMINA (Russia); Nastya Denisova, Trafficking Project, Krasnodar(Russia); Erica Burman, Department of Psychology and SpeechPathology, the Manchester Metropolitan University (UnitedKingdom); Sumanta Roy and Indira Purushothaman, IMKAAN(United Kingdom); Gemma Rosenblatt, the Fawcett Society (UnitedKingdom); Alida Toren, Domestic Violence Information Officer,Women’s Aid Federation of England (United Kingdom); FeraySalman, Human Rights Association of Turkey (IHD); Women forWomen’s Human Rights (Turkey); Patricia Guerrero, Comite ejecutivointernacional de la WILPF, Liga de Mujeres Desplazadas(Colombia); Patricia Ramirez Parra, Ruta Pacifica de lasMujeres – Regional Santander (Colombia); Luisa Cabal, Center forReproductive Rights (Colombia); Milen Kidane and Christian Balslev,UNICEF-Eritrea; Jelena Karzetskaja, Legal Information Centre forHuman Rights (Estonia); Madeleine Afite, Co-ordinator of ACATLittoral (Cameroon); Fatoumata Sire Diakite, Association pour leProgrès et la Défense des Droits des Femmes Mali.

IntroductionIntroductionThis fourth annual compilation of ten alternative country reports on violenceagainst women submitted to the so-called “mainstream” UN humanrights treaty monitoring bodies 1 by OMCT’s Violence Against WomenProgramme represents an essential activity to integrate a gender perspectiveinto the work of the five treaty bodies. The reports have been writtenin collaboration with national NGOs, including members of the OMCTSOS-torture network. The choice of countries has been made in accordancewith the agenda of the treaty bodies as well as the situation of thecountry and the availability of reliable information. The main findings ofthe different reports were presented during the various briefing sessionswith members of the treaty bodies.The goal of mainstreaming a gender perspective is achieving women’s fullequality with men and this includes ensuring that all United Nations activities,including those of the United Nations treaty monitoring bodies integratea gender perspective and the human rights of women. Although theprinciple of equal rights of women is enshrined by the Charter of theUnited Nations, the Universal Declaration of Human Rights and the subsequentinternational human rights treaties and declarations, the humanrights of women have historically been neglected by the “mainstream”United Nations system. International human rights law, although at firstsight gender-neutral, generally responded to human rights violations in thepublic sphere, whereas many of the human rights violations againstwomen take place in the private sphere. The adoption of the UNConvention on the Elimination of All Forms of Discrimination againstWomen in 1979 was in this sense extremely important in recognizinginequality and discrimination against women in the private domain and theimportance of women’s participation in political and public life. However,at the same time, it has reinforced the traditional tendency to neglectwomen’s human rights within the broader context of the UN system.This neglect was articulated in the Vienna Declaration and Programme ofAction adopted in 1993, which affirms that the human rights of womenand of the girl child are an inalienable, integral, and indivisible part of universalhuman rights and calls for action to integrate the equal status andhuman rights of women into the mainstream of the United Nations activitysystem-wide. 2 The theme of integrating a gender perspective and the7

Violence Against Women: 10 Reports / Year 2003human rights of women into the work of all human rights bodies of theUnited Nations system and their role in the achievement of gender equalitywas reiterated at the Fourth World Conference on Women, held in Beijingin September 1995, in its Platform for Action 3 as well as in the outcomedocument of the General Assembly’s twenty-third special session, entitled“Women 2000: gender equality, development and peace for the twentyfirstcentury. Also, in 2001, the UN Economic and Social Councilemphasised the importance of gender mainstreaming within all UN programsand decided to “intensify its efforts to ensure that gender mainstreamingis an integral part of all activities in its work and that of itssubsidiary bodies.” 4In 1999, OMCT published a study of the progress that had been made bythe “mainstream” UN human rights treaty monitoring bodies in integratinga gender perspective into their work. The results of this study demonstratedthat while some progress had been made, gender was not being fullymainstreamed in their work. The study also revealed that the treaty bodiescommittees had been proceeding at different paces with respect to gendermainstreaming, in particular, the Committee against Torture was progressingmore slowly.In answer to wide-spread gender-based violence against women, a manifestationof world-wide patterns of inequality between men and women, aswell as the inadequate state of gender mainstreaming into the work of thefive “mainstream” treaty bodies, OMCT has for the past four yearsengaged in a mainstreaming strategy by submitting 40 alternative countryreports on violence against women to the “mainstream” treaty bodies, witha special emphasis on the Committee against Torture. While theCommittee against Torture had begun to integrate a gender-perspectiveinto its work, its consideration of the situation of women, or gender issuesduring the dialogue with State parties fell into the following broad categories:rape and sexual offence by State officials, segregation of male andfemale prisoners and the situation of pregnant women. However, womenexperience violence in all areas of their lives. Besides violence at thehands of State agents (violence in detention, in the context of armed conflict,as internally displaced persons or refugees), women are subjected toviolence at the hands of their family members and intimate partners (i.edomestic violence, marital rape, harmful traditional practices, crimes committedagainst women in the name of “honour,” sex-selective abortions),8

Introductionand at the hands of members of the community (i.e. rape, exploitation ofprostitution and trafficking in women and girls).The question whether violence by private individuals can constitute a formof torture as defined in article 1 or ill-treatment as prohibited in article 16of the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, lies at the heart of a gender-inclusive and gender-sensitiveinterpretation of the Convention against Torture. Accordingto article 1 of the Convention against Torture, torture means not only actsby a public official, but also at the instigation of or with the consent oracquiescence of a public official or other person acting in an official capacity,of severe pain and suffering intentionally inflicted on a person for certainpurposes or for any reason based on discrimination. Although it isevident that not all violence against women can meet the criteria of torturewithin the meaning of article 1 of the Convention against Torture, the simplefact that the perpetrator is not a State official should not automaticallyresult in excluding this violence from the scope of the Convention againstTorture. It should also be noticed that international human rights law hasrecognised State responsibility for private acts when a State fails to exercisedue diligence in preventing, investigating, prosecuting, punishing andrepairing human rights violations. The “due diligence” standard has nowbeen generally accepted as a measure for evaluating State responsibilityfor violations of human rights by private actors.In terms of gender-inclusion and gender-sensitivity, in 2001, theCommittee against Torture made in 2001 a major step forward by expressingfor the first time concern about trafficking in women and domestic violencein its concluding observations and recommendations. Again in 2003,the Committee expressed also for the first time its concern about femalegenital mutilation and reparatory marriages (See the ConcludingObservations of the CAT concerning Cameroon in this publication). Asearly as 1986, the first U.N. Special Rapporteur on Torture, ProfessorKooijmans, recognized in the context of his discussion of the notion of the“qualified perpetrator” that: “the authorities’ passive attitude regardingcustoms broadly accepted in a number of countries (i.e. sexual mutilationand other tribal traditional practices) might be considered as “consent oracquiescence” particularly when these practices are not prosecuted ascriminal offences under domestic law, probably because the State itselfis abandoning its function of protecting its citizens from any kind of9

Violence Against Women: 10 Reports / Year 2003torture.” 5 However, the Committee against Torture only addressed genitalmutilation in 2003.With regard to reparatory marriages, in several countries around the world,a rapist is not punished when he marries the victim. The exemption frompunishment of the rapist when he marries the victim allows the rapist’scriminal responsibility to be extinguished, thus treating rape as a crimedistinguished from other crimes against a person, and it undermines thewoman’s free and full consent to marriage since she is often put underpressure in order to save her family’s “honour”.The ten country reports in this compilation confirm that violence againstwomen is clearly a universal problem. Although the distinct social, culturaland political contexts give rise to different forms of violence, its prevalenceand patterns are remarkably consistent, spanning national andsocio-economic borders as well as cultural identities. Women in Turkey,Bangladesh and Brazil women are subjected to violence committed in thename of honour or passion. Women in Cameroon, Mali and Eritrea undergogenital mutilation in the name of tradition. Immigrant women victimsof domestic violence in the United Kingdom, although not more likely tobe the victim of domestic violence than the majority population, findthemselves in a particularly grave situation as they risk losing their residencypermits if they leave their violent husbands. Women and girls inEstonia and Russia are particularly vulnerable to becoming trafficking victims.In Cameroon, Brazil, Turkey, and Eritrea, a rapist is not punishedwhen he marries the victim. Women in Colombia are targeted for beingrelatives or otherwise associated with the “other” side in the ongoingarmed conflict and as human rights defenders. Women in Chechnya aresubjected to violence particularly during “clean-up” operations and atcheckpoints. Women human rights defenders have also been killed, disappeared,tortured, and threatened as a result of their work in Chechnya.Violence against women can continue to flourish as too many governmentsdo not accept responsibility to end gender-based violence and allow it tooccur with impunity. Many states have failed to pass legislation specificallyprohibiting and punishing violence against women and to train Stateofficials so that they understand the complexities of issues surroundingthis type of abuse. In many countries, laws, policies and cultural practicesdiscriminate against women, deny women and men equal rights, and ren-10

Introductionder women vulnerable to violence. Unequal gender roles and societalstructures strengthen unequal power relations which adversely influencewomen’s enjoyment of economic, social and cultural rights and may leadas well to different forms of violence against women including domesticviolence and trafficking. On the other hand, women who are subjected toviolence are not able to enjoy fully economic, social and cultural rights,such as the right to freely choose or accept gainful employment, the rightto adequate housing or their right to enjoy the highest attainable standardof physical and mental health.Overall, governments continue to fail to protect women from violencewhether at the hands of private individuals or state officials. OMCT wouldlike to underline that States have a duty under international law to act withdue diligence to prevent, investigate, prosecute and punish all forms ofviolence against women, irrespective of whether this violence is committedby public or private individuals. This obligation has not been adequatelyimplemented at the national level.1 The “mainstream” human rights treaty monitoring bodies of the United Nationsare those treaty monitoring bodies that do not have women as their specified mandate.Thus, they are the Human Rights Committee; Committee Against Torture;Committee on Economic, Social and Cultural Rights; Committee on the Rights ofthe Child; Committee on the Elimination of Racial Discrimination; and, mostrecently, the Committee on the Protection of the Rights of All Migrant Workersand Members of their Families.2 U.N. Doc. A/CONF.157/23, Part II.3 U.N. Doc. A/CONF.177/20, Annex II.4 ECOSOC Resolution 2001/41.5 U.N. Doc. E/CN.4/1986/15, para 38.11

Violence against Girls in BangladeshA Report to the Committee on the Rightsof the ChildContents1. Preliminary Observations .............................................................................................................................. 152. General Observations concerning the Position of Girls and Women 163. Violence against Girls in the Family .......................................................................................... 193.1 Wife Battering ............................................................................................................................................... 193.2 Marital Rape ..................................................................................................................................................... 203.3 Early and Forced Marriage ......................................................................................................... 203.4 Dowry-related Violence .................................................................................................................. 213.5 Honour Crimes - Acid Throwing .......................................................................................... 234. Violence against Girls in the Community .............................................................................. 244.1 Rape and other forms of Sexual Violence ............................................................. 244.2 Prostitution and Trafficking in Girls ......................................................................... 265. Violence against Women Perpetrated by the State .................................................. 296. Concluding Observations and Recommendations ...................................................... 33Concluding observations of the Committee on the Rightsof the Child: BangladeshThirty-Fourth session – 15 September - 3 October 2003Consideration of Reports Submitted by States Partiesunder Article 44 of the Convention ........................................................................................................ 38A. Introduction ............................................................................................................................................................ 38B. Follow-up measures undertaken and progressachieved by the State party ................................................................................................................... 39C. Factors and difficulties impeding the implementationof the Convention ........................................................................................................................................... 39D. Principal subjects of concern, suggestions and recommendations 4013

Bangladesh1. Preliminary ObservationsThe submission of specific information on violence against girls to theCommittee on the Rights of the Child in tandem with the submission of aglobal alternative report on the Rights of the Child in Bangladesh by theWorld Organisation Against Torture (OMCT), forms part of the ViolenceAgainst Women Programme of OMCT, which focuses on the integrationof a gender perspective into the work of the United Nations human rightstreaty monitoring bodies.The Convention on the Rights of the Child (hereinafter “Convention”)establishes standards for the protection of girls from physical and psychologicalviolence in the home, in the community and at the hands of Stateofficials. The Convention uses both feminine and masculine pronouns inits provisions and it stresses in Article 2(1) that : “State parties shallrespect and ensure the rights set forth in the present Convention to eachchild within their jurisdiction without discrimination of any kind, irrespectiveof the child’s … sex.” Among the rights that States Parties mustprotect regardless of sex, are: the right to life; the right to be free fromviolence, mistreatment and exploitation while under the care of a parentor other guardian; the right to be free from harmful traditional practices;the right against sexual exploitation and abuse; and the right against torture.Bangladesh has ratified the Convention on the Rights of the Child(September 2, 1990) and its two Optional Protocols on the involvement ofchildren in armed conflict and on the sale of children, child prostitutionand child pornography (February 12, 2002 and January 18, 2002 respectively).Bangladesh has also ratified the Convention on the Elimination of AllForms of Discrimination Against Women (November 6, 1984). However,Bangladesh registered several reservations at that time, particularly to articles2, 13(a), 16.1(c) and (f). On July 24, 1997 Bangladesh removed thereservations from articles 13(a) and 16.1(f), but the reservations onarticles 2 and 16.1(c) are continuing. 1 Additionally, Bangladesh has ratifiedthe Optional Protocol to the Convention on the Elimination of AllForms of Discrimination Against Women which allows individuals orgroups of people – after they have exhausted all national remedies – to15

Violence Against Women: 10 Reports / Year 2003present communications to the Committee concerning violations of theConvention. This Protocol also enables the Committee to investigatesevere or systematic violations of the Convention occurring in countriesthat are parties to the Convention and its Optional Protocol.Bangladesh has also ratified the International Covenant on Civil andPolitical Rights, the International Covenant on Economic, Social andCultural Rights, the Convention on the Elimination of All Forms of RacialDiscrimination, and the Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment.Despite these international obligations, OMCT notes with concern thathuman rights violations, including torture, take place on a wide scale inBangladesh. Women and girls suffer from violent attacks in the domesticand community spheres, including rape, murder and acid throwing. Theauthorities seldom order a judicial inquiry into such attacks, and if theydo, they do not publish the findings or punish the perpetrators. OMCT isconcerned about corruption, poor governance and the lack of independentinvestigation bodies in Bangladesh.2. General Observations concerning the Position of Girls andWomenBangladesh has a colonial historical background and achieved her independencein 1971 under the leadership of Bangabandhu Sheikh MujiburRahman. The economy is mainly agrarian and the population is approximately140.4 million. 2 Women form over 50 percent of the total populationand the growth rate is 1.75 percent per annum. The population ofpersons below 15 years is around 43 percent of the total population; andwomen of reproductive age (15 – 49 years) represent 46 percent of thetotal female population. The maternal and infant mortality rates arereported to be 4.5 and 78 per thousand live births respectively. Lifeexpectancy has increased to 58.1 years for male and 57.6 for female comparedwith the 1991 level of 55 and 54.5 years respectively.Women’s rights to equality are guaranteed in the Constitution, which waswritten in 1972. Article 27 of the Constitution states, “All citizens areequal before the law and are entitled to get equal protection of law.”16

BangladeshSimilarly, article 28(1) states that “the State shall not discriminate againstany citizen on the grounds of religion, race, caste, sex or place of birth.”Article 28(2) states, “Women shall have equal rights with men in allspheres of the state and of public life.” Additionally, article 28(4) providesthat “Nothing shall prevent the State from making special provisions infavor of women or for the advancement of any backward section of thepopulation.” Article 29(1) provides, “There shall be equality of opportunityfor all citizens in respect of employment or office in the service in therepublic.”The Constitution further advances and incorporates the principle of specialrepresentation of women in local self-governing bodies (article 9) andprovision has also been made to reserve thirty seats for women in theParliament (article 65(3)). But unfortunately, the ten-year term of thewomen’s reserved seats has expired with the ending up of the SeventhParliament in 2001. In order to reinstate these special measures, a constitutionalamendment is required by the government.On March 8, 1997, the Bangladeshi Government, for the first time, introducedthe National Policy for the Advancement of Women. The policyaims at improving women’s fate recognizing that they have beenoppressed and neglected for decades. Some of the major goals of this policyare i) to establish equality between men and women in all spheres ofnational life; ii) to eliminate all forms of discrimination against womenand girls; iii) to establish women’s human rights; iv) to establish equalitybetween men and women in administration, politics, education, culture,sports and all other economic activities; and v) to provide support servicesin the advancement of women. The government has also developed aNational Policy for the advancement of the girl child, which includes thefollowing aims:i. Eliminate all forms of discrimination against girl-child and enact necessarynew laws.ii. Strict enforcement of laws against early-marriage, rape of girl-child,oppression, trafficking and prostitution.iii. Treat girl-child without any discrimination both in the family and theworld outside and project a positive image of the girl-child.17

Violence Against Women: 10 Reports / Year 2003iv. Take into consideration the needs of the girl-child like food, nutrition,health, education, sports, culture and vocational training.v. Give special attention on the implementation of programs aiming ateliminating child labor, especially that of the girl-child. 3In spite of the declaration of equality in the Constitution regarding theirrights as citizens and the development of the National Policies, womenand girls are deprived of many rights such as the right to social security,freedom of expression, as well as rights to education, health, nutrition,and shelter. In most cases, women are also deprived of participation inany decision-making process in family, political, economic and culturalcontexts. With respect to the family, women have little say in suchdecisions as children’s education, marriage, divorce and guardianship ofchild, their own reproductive rights and even with respect to choosing ajob. 4In education also, traditional socio-cultural practices limit women andgirls’ opportunities, skill development, employment and participation inthe overall development processes. There is a large gender gap in relationto education in Bangladesh which is largely due to ancient tradition andcommon mentality. Ideas about the appropriate roles for women in thelabour market or in society, about biological unsuitability of women forscience, and about the gender division of work in the household and onthe farm influence decisions about schooling. Accordingly, there is a disparityin the literacy rates of women and men, with rates of 29 percentand 52 percent in the year 2000 respectively. 5Violence against women and girls has not declined significantly though anumber of laws have already been enacted. Oppression of women andgirls, murder of women and girls for dowry, abduction, trafficking inwomen, rape, acid throwing on girls and other forms of violence againstwomen are almost regular phenomena. Incidents like burning to death andstoning to death in a pit have also taken place in the country based on religiousmisinterpretation given by village arbitration councils. Additionally,state sponsored violence has been manifest through recent cases of rapeand murder of women and girls by the police.18

Bangladesh3. Violence against Girls in the Family3.1 Wife BatteringGirls, when married before the age of 18, are at greater risk of physicaland psychological violence perpetrated by their husbands or other membersof their extended families. It should be noted that wife battering athome constitutes by far the most common form of violence againstwomen and girls and is a significant cause of injury. Wife batteringremains hidden, it is not the type of act that dominates headlines as it happensbehind closed doors and victims fear speaking out. It is not often recognizedas a crime and remains one of the biggest threats to women’ssecurity. In 1998, murders of wives by their husbands accounted for over70 percent of reported domestic violence cases involving girls 13 – 18years old. 6 Woman battering includes various methods of torturous physicalviolence. Women victims who have survived woman battering reportviolence such as slapping, punching, kicking, beating with fists or objects,biting, strangling, burning, raping with body parts or objects, stabbing andshooting. In the most extreme cases, woman victims die as a result of theirinjuries.The law called ‘Woman & Child Repression Prevention Act – 2000’(Bangla name – Nari O Shishu Nirjatan Damon Ain – 2000) deals specificallywith women and children and includes measures against domesticviolence against women and children. However, the Penal Code does notdeal specifically with domestic violence.Despite the Woman & Child Repression Prevention Act – 2000, domesticviolence continues to go unpunished. Women are often reluctant to reportthe crime out of shame, and when the crime is reported, the investigationand prosecuting officers can be insensitive to the difficulties faced by victimsof domestic violence. There is an apparent lack of due diligence inthe investigation, prosecution and punishing of domestic violence.Although some shelters exist in the capital city of Bangladesh, the ruralareas do not have many shelters.19

Violence Against Women: 10 Reports / Year 20033.2 Marital RapeIn Bangladesh, marital rape is excluded from the Penal Code and it isnever treated as rape. Cultural and legal attitudes consider that wivesshould be always ready to meet the sexual “needs” of their husbands. Inthe Bangladesh Penal Code 1860, section 375, the definition of rape isprovided and the exception of marital rape is clearly stated: “Sexual intercourseby a man with his own wife, the wife not being under 14 years ofage is not rape.”3.3 Early and Forced MarriageEarly marriages, especially without the consent of the girl, are very commonin Bangladesh. Early marriage is intended for several reasons, suchas to guarantee financially well-established husbands, relieve her familyof the burden of a mouth to feed and at the same time ensure a long cycleof fertility to produce a number of sons.In Bangladesh, under the Child Marriage Restraint Act 1929, a girl cannotbe married until the age of 18 and boys not before 21. The differing legalages of marriage for girls and boys is facially discriminatory.Additionally, it appears that even this discriminatory law has had littleimpact on the prevalence of early marriage in Bangladesh as it is estimatedthat half of women there are younger than 18 when they marry. Thelack of birth registration and lack of awareness of the parents about thebad effects of early marriage makes enforcement of this law difficult.The survey entitled, a Baseline on Grassroots Distress Women conductedby Naogaon Human Rights Development Association in 2000, shows thatmore than 50% of women do not know the minimum age of marriage.Additionally, although it is legally required to register marriages, 65.88%of marriages are not registered, which leaves many women unable to availthemselves of the rights associated with a legally recognized marriage,such as post-divorce payments. Moreover, about 54% of the respondentsdid not know how the legal system could help them and about 91% ofrespondents were unaware of the legal aid given by the government. 7Additionally, early marriage can lead to early childhood/teenage pregnancy.Childbearing during early or middle adolescence, before girls are20

Bangladeshbiologically and psychologically mature, is associated with adverse healthoutcomes for the both mother and child. A study analyzing the causesof maternal mortality in Matlab in Bangladesh during the period of1976 – 1985 found a much higher maternal mortality rate among femalesage 15 – 19 years compared to those in the low-risk age group of 20 – 34years. 83.4 Dowry-related ViolenceDowry-related violence is particularly problematic in Bangladesh. A surveyconducted by Naogaon Human Rights Development Associations(NHRDA) revealed that 84% percent of the cases it received in 2000 weredowry related wife battering cases. In 2001, 173 girls and women werekilled due to dowry demand with 79 of these victims below the age of18. 9The term ‘dowry’ has been defined by the ‘Joutuk Nirodh Ain 1980’ orthe Dowry Prohibition Act – 1980, as “property or valuable security givenor agreed to be given as consideration for the marriage of the parties”and it is generally offered by the wife’s family to the husband before themarriage. The Dowry Prohibition Act of Bangladesh provides that paymentor demand for payment of dowry by any one is punishable withimprisonment for up to five years or a fine or with both. The law wasamended in 1983, 1995 and 2000 to provide for a sentence of death or lifeimprisonment and financial penalty to a husband or any of his relativeswho causes or attempts to cause death or grievous injury to a wife onaccount of dowry. 10 OMCT stresses that in addition to being opposed tothe death penalty as an extreme form of cruel, inhuman and degradingpunishment and a violation of the right to life, as proclaimed in theUniversal Declaration of Human Rights and other international humanrights instruments, it fears that the death penalty would rather function asa deterrent for prosecution and punishment of the crime.Despite the legal prohibition, the practice of paying a dowry has notstopped or diminished in Bangladesh, neither in rural nor in urban areas.Repression of women for their inability to bring adequate or repeatedinstalments of dowry from their poor parents and resultant deaths orgrievous injuries is rather disquietingly frequent.21

Violence Against Women: 10 Reports / Year 2003The negative aspects of dowry i.e. the bitter negotiations, threats, extortion,and repercussions for unmet dowry demands are not generallymanifest in middle and upper class families. It is the poor who reallysuffer economically and socially as a result of the practice of dowry. Theeconomic consequences are that, the money of dowry is often raisedby the sale or mortgaging of land at low prices. It also includes livestock,trees, household goods and family jewelry and as well as loans fromNGOs and moneylenders at high rates of interest. Despite these economicconsequences, payment of dowry is prevalent as shown by the abovementionedsurvey, which found that 77% respondents gave dowry during theirmarriage and only 23% of marriages were held without dowry. 11There are many severe consequences resulting from the payment ofdowries. First, failure to meet the dowry demands or the new demandsoften results in verbal and physical abuse of the wife. Physical abuseincludes beating, burning with cigarettes, withholding food, sleep deprivationand denial of medical treatment. The abuse may be meted out by thehusband or members of his family, especially his mother. Verbal abusemay include starting rumors about the character or behavior of the wifeand often the girls feel unable to disclose the situation to her parents. Ifthe physical abuse continues and worsens, this may lead to the wife committingsuicide.Additionally, a common result of unmet dowry is sending the girl orwoman back to her parent’s house. When this happens everyone considersthat it must be the fault of the girl or woman saying such things as: “Shecould not adapt to her husband” or “She cannot look after her husbandproperly”. So, once again both the girl and her parents suffer fromrumours and criticism. This also affects the reputation of the younger sisters.Apart from the social stigma attached to the girls being returned to livewith her parents there are other problems. Her brothers and their wivesmay resent her presence, particularly if she has brought children with her.She is seen as a drain on the household resources and may be verbally,and even physically, abused by her own family. 1222

Bangladesh3.5 Honour Crimes - Acid ThrowingOMCT is gravely concerned over the increase in the number of reportsregarding acid attacks against women in Bangladesh. The victims of acidthrowing are usually young girls between 10 and 18 and the perpetratorsare usually jealous boyfriends, spurned suitors, neighbourhood stalkers,and sometimes, angry husbands in search of more dowry or permission toenter into a polygamous marriage. The crime of acid throwing is particularlyprevalent in rural areas and smaller towns, although there are someincidents in large cities among factory/garment workers and the slumdwelling population. Most victims of acid throwing are seriously burnedon their faces and even after extensive treatment, the scars usually remain,making reintegration into society difficult.Acid throwing is a type of “honour crime” which is perpetrated when awoman allegedly steps out of her socially prescribed role, especially, butnot only, with regard to her sexuality or her relationship towards men. Forexample, in Bangladesh the reasons for the acid throwing attacks includethe refusal of an offer of affair or marriage or illegal physical relations,dowry disputes, domestic fights and arguments over property. In 2002,362 people were burnt through acid violence, among that number, 138were girls and 188 were women, and with respect to these incidents, only172 cases were filed. 13The Women and Children Repression Prevention Act 2000 provides forthe death penalty for whoever causes the death of any woman or child byany poisonous, combustible or corrosive substance. Offence of grievoushurt that is caused by using the above substances resulting in permanentdeprivation of the sight, disfiguration of head or face, deprivation of hearing,permanent destruction of any member or joint of the body of awoman or child has been made punishable with death, imprisonment forlife, or imprisonment up to 14 years with a minimum of 7 years imprisonment.14There are problems with the implementation of this law, caused by underreportingof the crime out of shame on the part of the victim, and a lack ofwillingness on the part of the police to take this crime seriously when it isreported. In some instances, police reportedly attempted to convince thevictims to withdraw their complaints. OMCT stresses again that in additionto being strongly opposed to the death penalty as an extreme form of23

Violence Against Women: 10 Reports / Year 2003cruel, inhuman and degrading punishment and a violation of the right tolife, it fears that the death penalty would rather function as a deterrent forprosecution and punishment of the crime.4. Violence against Girls in the Community4.1 Rape and other forms of Sexual ViolenceIn the last few years, incidents of rape and other sexual offences hasincreased alarmingly. According to the Human Rights Situation Report byBangladesh Institute of Human Rights (BIHR) in 2000 and 2001, the rapevictims were accordingly 749 and 586 and most of the victims wereminor and adolescent girls. The State Minister of Peoples Republic ofBangladesh informed the Parliament that in 2002, 4106 rapes occurred allover the country and in January 2003, 232 incidents of rape occurred. 15The daily newspaper ‘Daily Janakantha’ published two rape-incidents onApril 30, 2003. One of these was in Manikgonj, 70 kilometers from thecapital, where the perpetrators tied up the parents of the victim, a teenagegirl of a minority (Hindu) family, and then raped her in front of her parents.Another was in Thakurgaonl, about 500 kilometers from the capital,where a teenage girl was gang raped. A representative of the local neighbourhoodarranged a mediation concerning the incident of rape, but whenthe victim went to the mediation, she was then raped by the representative.Earlier, two terrible rape incidents occurred in the capital city: one wasrape and murder of 14/15 years girl Shazneen in the her bedroom atGulshan and another rape case was that of Tania, a six year old child, whowas raped in the police control room within the courthouse premises.Many rape cases go unpunished for various reasons, including lack ofcogent evidence, improper and poor forensic examination of the victim,corruption by police and some judicial officials, witnesses’ fear reprisalby the accused, and legal complexity. 16The Sexual Offence Act 1976 defines rape as “unlawful sexual intercoursewith a woman who at the time of the intercourse does not consent24

Bangladeshto it.” According to the Bangladesh Penal Code 1860, section 375 “if aman has sexual intercourse with a woman or a minor girl against her consentor with her consent obtained by threat of death, hurt or fraudulence,he is said to commit rape. Sexual intercourse falling under any of the fivefollowing descriptions would be treated as rape: (1) against the woman’swill, (2) without her consent, (3) with her consent when her consent hasbeen obtained by putting her in fear of death or of hurt, (4) with her consentwhen the man knows that he is not her husband and that her consentis given because she believes herself to be lawfully married, and (5) withor without her consent when she is under 14 years old. Penetration is sufficientto constitute the sexual intercourse necessary to the offence ofrape. Sexual intercourse by a man with his own wife, the wife not beingunder 14 years of age is not rape.”The narrow definition of rape provided by the laws of Bangladesh is problematic.Firstly, it appears that rape only encompasses penetration by aman of a woman. Furthermore, the burden of proof to show lack of consentis on the victim, making it even more intimidating for victims of rapeto report the crime.It is often extremely difficult when the woman herself has to prove thatshe has been raped, rather than the culprit to prove the contrary. To provea rape case, a victim has to produce medical evidence in court. The victimhas to be examined by a doctor of her local government hospital as soonas possible after being raped and a doctor will in general be supportive forthe victim if he or she notes that the clothes of the victim are stained withsemen and blood. But in reality, it is found that, women who are raped inrural areas are not willing to come to the hospital. In most cases, rape victimsfeel ashamed of being violated and do not want to be checked by amale doctor and female doctors are often not available in the health complexes.In many cases, rape victims wash themselves and their clothesafter the incident thereby doing away with vital evidence. Women areoften unaware that a medical report is the concrete proof of rape. When acase is reported at the police station, the police show negligence and failto get a medical examination for the victim in adequate time. As a resultthe case again becomes weak.The law also demands the evidence of an eyewitness. While it is possiblethat a third party is present during the commission of rape, in general25

Violence Against Women: 10 Reports / Year 2003rapes are not witnessed by a third party and if they are, the third partyusually becomes a party to the crime. Where a rape is witnessed by a thirdparty, the witness is often reluctant to testify against the accused out offear or insecurity. 17When a rape victim comes to a police station to file a case, generally themale police officers interrogate her, as a result she feels ashamed and theFirst Information Report (FIR) will be very weak. The police often do notpay proper attention to allegations of rape and generally only intervene insuch cases where the rape is followed by murder.Rape of any woman or child has been made punishable with imprisonmentfor life with financial penalty. If any woman or child dies as a resultof raping, the offender would be punished with death or imprisonment forlife with financial penalty of 100,000 taka. Causing the death of a womanor child by gang rape is also punishable with death or imprisonment forlife with financial penalty of 100,000 taka. Attempt to cause death orinjury by raping a woman or child is also punishable with death or imprisonmentfor life with financial penalty. The penalty for attempt to rape awoman or child is a maximum of 10 years imprisonment and a minimumof 5 years imprisonment with financial penalty. Rape in police custody isalso punishable with a maximum of 10 years imprisonment and a minimumof 5 years imprisonment with financial penalty.Nari O Shishu Nirjaton Domon Ain 2000 (Women and ChildrenRepression Prevention Act, 2000), section 10 includes the punishment ofother forms of sexual violence, which are not considered rape, but ratherare considered molestation. The punishment for these crimes is less thanthe punishment for rape. To be a rape, the act must fulfil one of the fiveconditions mentioned in article 375 of the Penal Code.On a positive note, recently, due to awareness drives by NGOs the reportingon rape has increased. Journalists are also playing important rolethrough front paging rape incidents and carrying out follow-up reports.4.2 Prostitution and Trafficking in GirlsBangladesh is considered a zone where many children and women aretrafficked and there is little government control. Due to their low socio-26

Bangladesheconomic status women and children are particularly vulnerable to traffickingand sexual exploitation. Religious and cultural taboos perpetuateconditions that make women and children vulnerable to exploitation.Lured by promises of good jobs or marriage, trafficked victims are mainlyforced into prostitution. Traffickers arrive in a village and convince achild’s family to let the child leave with the trafficker.There have been several research studies undertaken in recent years on theissue of trafficking in women and children. Some were national surveys,while others were studies done in pocket areas or based on media coverageof incidents being reported to the police or found during investigativereport writing.According to an Indian Researcher Dr. K.K Mukherjee, 20 percent of sexslaves in Indian brothels were trafficked from Bangladesh and Nepal. Areview of UNICEF indicated that 200,000 women and children were traffickedto Pakistan from Bangladesh. The report further said that the figuremight be below the real number, as all trafficking cases were not dulyreported. 18 According to Center for Women and Children Studies(CWCS) about 100 children and 50 women are being trafficked to foreigncountries every month from Bangladesh. Since independence at least1,000,000 women and children have been trafficked from Bangladesh andof them about 400,000 were young women forced into the sex business inIndia.According to the Consultation Meeting on Trafficking And Prostitution in1997 organized by the CWCS, there are a variety of reasons leading to thetrafficking of children, including the break up of traditional joint familysystem and the emerging nuclear families, child marriage or marriageproblems, dowry demand, acute poverty forcing parents to sell their children,unequal power relations and discriminations in the family by genderand age.Traffickers are able to lure parents into selling their children by promisingemployment and greater earning power for the children, who would sendmoney back to the parents. Another scheme is to arrange fake marriagesin order to gain control over children and women. In these arrangements,the women or girls are married and then sold into trafficking. Once childrenare trafficked, they are often forced into prostitution or domestic service.27

Violence Against Women: 10 Reports / Year 2003The grievance nature and the magnitude of trafficking in women and childrenhave led the policy makers to incorporate the issue in the various actsand laws over time. The Penal Code 1860, modified in 1991, containsprovisions of kidnapping, abduction, slavery and forced labor.Section 360 of the Penal Code states, “Whoever conveys any personbeyond the limits of Bangladesh without the consent of that person or ofsome persons legally authorized consent on behalf of that person, is saidto kidnap that person from Bangladesh”.Section 361 of the Penal Code states, “Whoever takes or entices anyminor under fourteen years of age if a male, or under sixteen years ofage, if a female, or any person of unsound mind, out of the keeping of thelawful guardian of such minor or person of unsound mind, without theconsent of such guardian, is said to kidnap such minor or person fromlawful guardian”.Section 363 of the Penal Code states that the punishment of kidnapping ineach case is imprisonment for up to seven years, and possible financialpenalty.Furthermore, there are several aggravating factors to kidnapping warrantingmore punishment, such as intent to murder, kidnapping a child underthe age of 10, intention to unlawfully confine the victim, or intention toforce the victim to marry or to engage in sexual intercourse. Additionally,the Penal Code prohibits slavery.Due to the increasing rate of trafficking in women and children, theWomen and Children Repression Prevention Act, 2000 was enacted withmore stringent punishment.Section 06 states-(1) Whoever brings from abroad or sends or traffics or buys or sells,or otherwise keeps a child in his/her possession, care or custodywith the intention of using the child for any unlawful or immoralpurpose shall be punished with death sentence or life imprisonmentand shall also be liable for fine.(2) Whoever steals a newborn baby from a hospital, child or maternityhospital, nursing home, clinic etc, or from the custody ofconcerned guardian shall be punishable accordance with subsection(1).28

BangladeshSection 07 states, “Whoever kidnaps or abducts any woman and childexcept with the intention of using them for any unlawful purpose mentionedin section-5 shall be punishable with life imprisonment or rigorousimprisonment for at least fourteen years and shall also be liable to a monetaryfine.”However, the implementation of the above national laws seems to beinsufficient. The low number of court cases and convictions regardingtrafficking in Bangladesh illustrates the lack of enforcement of theBangladeshi laws concerning trafficking. During the last five years, only53 such cases were placed before the court, out of which 35 had to bedropped for lack of adequate evidence. Only 21 culprits have been convicted,the highest punishment being 10 years rigorous imprisonment. 19So far, there has been no uniform law on slavery and trafficking of womenand children in the region, especially the sending and receiving countries.5. Violence against Women Perpetrated by the StateThe Constitution of Bangladesh forbids torture under Article 35(5), whichstates: “No person shall be subjected to torture or to cruel, inhuman, ordegrading punishment or treatment.”Torture is also a criminal act under the Penal Code, which provides in section330 that: “Whoever voluntarily causes hurt, for the purpose of extortingfrom the sufferer or any person interested in the sufferer, anyconfession or any information which may lead to the detection of anoffence or misconduct, or for the purpose of constraining the sufferer orany person interested in the sufferer to restore or to cause the restorationof any property or valuable security, shall be punished with imprisonmentof either description for a term which may extend to seven years, andshall also be liable to fine.Governments in Bangladesh have shown no determination to enforce thelaw, which is there to protect the population. Charges of torture are rarelybrought against police officers even in cases where allegations of torturehave been substantiated.On April 7, 2003, the High Court announced its judgment on a writ petitionin public interest filed before the court in November 1998 by three29

Violence Against Women: 10 Reports / Year 2003Bangladeshi human rights organizations and five concerned individualsfollowing the death of a man in police custody in July 1998. The petitionsought mandatory guidelines to prevent torture in custody after arrestunder Section 54. 20 The judgment restricts arbitrary use of administrativedetention law including the Special Powers Act. It makes it mandatory forthe police to inform the family members of anyone arrested; for theaccused to be interrogated by an investigation officer in prison instead ofpolice interrogation cell, and behind a glass screen so that his/her familymembers and lawyers can observe whether or not he or she is being tortured;and for the detainee to receive medical examination before andafter remand into police custody. It empowers the courts to take actionagainst the investigating officer on any complaint of torture if it is confirmedby medical examination. It directs the government to amend relevantlaws, including Section 54, within six months to provide safeguardsagainst their abuse, and recommends raising prison terms for wrongfulconfinement and malicious prosecution.While the constitution of Bangladesh guarantees fundamental humanrights and specifically forbids torture and while torture is a criminal actunder the Penal Code, a number of laws in Bangladesh create conditionsthat facilitate torture. The most commonly used of these is Section 54 ofthe Code of Criminal Procedure. Section 54 enables the police to arrestanyone without a warrant of arrest and keep them in detention for up to 24hours on vaguely formulated grounds. In all cases of detention underSection 54 of the Code of Criminal Procedure reported to BangladeshInstitute for Human Rights, the detainees claimed that they had been torturedand that torture began from the moment of their arrest.On January 9, President Iajuddin Ahmed issued “The Joint DriveIndemnity Ordinance 2003” which provided impunity to “members of thejoint forces and any person designated to carry out responsibilities in aidof civil administration during the period between October 16, 2002 andJanuary 9, 2003”. Under the ordinance, no civil or criminal procedurecould be invoked against “disciplinary forces” or any government officialfor “arrests, searches, interrogation and other steps taken” during thisperiod. The Ordinance related to “Operation Clean Heart” which startedon October 17 as a campaign against crime carried out jointly by armyand police forces. The campaign was the government’s response to growingconcern within Bangladesh and the international community about the30

Bangladeshcontinuing deterioration in law and order, including a rise in criminalactivity, murder, rape and acid throwing. At least 40 men reportedly diedas a result of torture after being arrested by the army. The governmentacknowledged only 12 deaths and claimed they were due to heart failure.Families of the victims and human rights activists, however, claimed thatthe deaths resulted from severe torture while in army custody.The failure of successive governments to address human rights violationsin a consistent and effective manner points to the desperate need for anindependent, impartial and competent human rights watchdog in the country- such as a National Human Rights Commission (NHRC). Humanrights defenders and the international community have been urgingBangladeshi governments to set up a NHRC. The present government hasacknowledged the necessity for its formation, but the government hasfailed to take the appropriate action to establish it.Following the elections in October 2001, Bangladesh witnessed unprecedentedlevels of political persecution and violence against supporters ofthe Awami League, which opposed the ruling party, the BangladeshNational Party (BNP). A new and frightening dimension has been addedto the form of this violence, specifically the targeting of women and girlsbased on the political affiliations of their families. Although this violenceis generally not committed directly by police officers or other Stateagents, the perpetrators are generally supporters of the ruling party, whilethe victims are generally supporters of the opposition party, and crimesappear to be politically motivated. The police often do not offer any helpto the victims as they are controlled and influenced by the ruling party andthus not sympathetic to crimes committed against these victims, resultingin a lack of due diligence.According to article 27 of the Constitution of the Peoples Republic ofBangladesh, “All citizens are equal before the law and are entitled to getequal protection of law”. Similarly, article 28(1) states that “the State shallnot discriminate against any citizen on the grounds of religion, race, caste,sex or place of birth.” But the reality is different than the constitutionalrights. Violence against minorities, particularly minority girls, is prevalentin Bangladesh.With respect to violence against girls, there are many documented cases.For example, on October 6, 2001, a 16 year old girl from the Azimnagar,31

Violence Against Women: 10 Reports / Year 2003Bhanga Faridpur family was gang raped twice by BNP supporters,allegedly because her family supported the opposition party. The incidenttook place about 200 kilometers from the capital in the victim’s homewhere the perpetrators forced her mother to watch the crime. They lootedher house and she has not filed any complaint out of continuing fear of theperpetrators.Another minority girl was raped due to her family’s support of the oppositionon October 8, 2001. On that day, the perpetrators entered the family’shouse and tortured all of the family members and then took Purnima, the14 year old daughter, outside and gang raped her. Although the police initiallyrefused to accept this case, despite clear evidence of the rape, a casewas eventually filed with respect to this incident.OMCT issued an urgent appeal on July 28, 2003 on a case where threeHindu women were raped on 5 July 2003. According to the informationreceived, a gang of men attacked the homes of Hindu families in the villageof Biswanathpur in the sub district of Kaligaonj in Satkhira,Bangladesh. During the course of the attack three women were raped andseveral houses were destroyed. The report indicates that the attack waspolitically motivated and targeted the Hindu minorities in an effort todrive them from their land.According to the information received, the three women were releasedfrom the hospital on July 21. The doctors and police allegedly did notcooperate and the victims did not receive an official medical examination.The police reportedly warned the victims not to undergo a medical examinationand threatened harm to the victims’ husbands if they did have suchan examination. The victims have reportedly been threatened andalthough a complaint has been filed, it was apparently drafted by thepolice and has no merit.OMCT expresses concern that several hundreds of minority persons havebeen killed, thousands of minority women and girls have been raped, andthousands have been forced to flee Bangladesh since October 2001, whenthe current government came to power.32

Bangladesh6. Concluding Observations and RecommendationsAlthough the Constitution prohibits discrimination based on sex, there isconsiderable divergence between the constitutional provisions and practice.Girls in Bangladesh face many obstacles to the realisation of theirhuman rights. Traditional and customary malpractices and patriarchalsociety disenfranchise women from the equal right of men and women tothe enjoyment of all their political, civil, economic, social and culturalrights. Their low status in all spheres of life renders women and girls vulnerableto violence in the family, the community and by the State.OMCT notes with concern that although wife battering is a common practicein Bangladesh, this crime continues to go unpunished. Many wife batteringcases are dowry related. Another crime which has increased atalarming rates is acid throwing, of which the victims are usually girlsbetween 10 and 18 and the perpetrators are usually jealous boyfriends,spurned suitors, neighbourhood stalkers, and sometimes, angry husbandsin search of more dowry or permission to enter into a polygamous marriage.The specific legal prohibition of domestic violence, acid throwingand dowry has not resulted in a diminishing of the violence.OMCT is very concerned that the Government has yet to develop a comprehensivepolicy and legislative response to the problem of domestic violence.OMCT would recommend that effective measures be taken withrespect to the enactment of legislation on domestic violence along thelines of the guidelines submitted by the United Nations SpecialRapporteur on violence against women to the fifty-second session of theUnited Nations Commission on Human Rights (U.N. Doc.E/CN/.4/1996/53, Add.2). The measures that the government could envisageincorporating within domestic violence legislation would include; theestablishment of a system for the enforcement of ex-parte restraining andprotective orders that would have the effect of ensuring that the perpetratorcould not approach the victim and other witnesses and that the perpetratorbe obliged to vacate the family home; and provisions on the rightsof victims to receive appropriate legal, medical and other assistanceincluding alternative shelter and reparations.In addition, greater attention must be paid to the factors that currently preventgirls in Bangladesh from lodging complaints in relation to domestic33

Violence Against Women: 10 Reports / Year 2003violence. These factors include traditional social beliefs concerning thesubordinate status of women in family relationships. Moreover, claims areoften dealt with in an insensitive manner by the police and seldom result inpunishment of the perpetrator. OMCT would recommend the developmentof broad-based public awareness campaigns concerning domestic violence,if possible in conjunction with local human rights organisations.Comprehensive programs of action to promote non-discriminatory treatmentof girls and boys and to eradicate harmful traditional practices,including acid throwing and dowry payments, should be established.Recent initiatives amongst health care professionals and members of theNGO community to establish hotline facilities for victims of domestic violenceshould be encouraged and expanded and more shelters should be setup. Moreover, OMCT would insist on the necessity of training for lawenforcement officials and members of the judiciary in relation to the investigation,prosecution and punishment of cases of family-based violence.OMCT also notes with grave concern that marital rape is not a crime inBangladesh and it would recommend that the government take steps toexplicitly criminalise rape occurring within the context of marriage.OMCT is very concerned about the early and forced marriage of girls inBangladesh. Under the Child Marriage Restraint Act, the legal minimummarriage age for a woman is 18 and for a man 21. This law, which isfacially discriminatory has little impact in Bangladesh where half of thegirls are younger than 18 when they get married. Early marriage has beenshown to render girls more vulnerable to domestic violence and, by prolongingtheir reproductive lives, it can also lead to other serious healthconsequences. OMCT would strongly encourage the government toencourage birth registration and raise awareness among the people aboutthe bad effects of early marriages on girls.OMCT expresses concern about the increase in trafficking in women andgirls and the high incidence of prostitution. The criminal justice systemshould engage in serious efforts to prevent, investigate, prosecute andpunish traffickers. Furthermore, the government should guarantee thesocial welfare of trafficking victims who want to be rescued by providingthem with alternative ways of living, including strong health policies andactivities directed at the problem of HIV/AIDS among women who havebeen trafficked for prostitution.34

BangladeshTo prevent girls from being trafficked, emphasis should be laid on awareness-raisingprogrammes, adequate legislation and better law enforcement,and the establishment of regional mechanisms. Other preventativemeasures include provision of health services, quality education and trainingi.e. more access to basic education and life skills; more informationcampaigns on reproductive and sexual health, HIV/AIDS, and counseling.Desperation to leave their home country makes women and girls easy victimsto trafficking. Providing women with income earning opportunitiesand ways to become economically independent is another strategy to preventtrafficking.OMCT expresses its concern over politically motivated human rights violationsin Bangladesh. Women and girls belonging to religious minoritiesor who are political opponents or family members of political opponentsare at risk of sexual abuse, including rape. The perpetrators are generallynot state agents but they are often supporters of the ruling party and thehuman rights violations are generally not investigated, prosecuted andpunished with due diligence. OMCT would insist that the governmentprovide adequate redress, including compensation, to child victims ofhuman rights violations, aimed at their rehabilitation and reintegrationinto society.OMCT is concerned about corruption, poor governance and the lack ofindependent investigation bodies in Bangladesh. The failure of successivegovernments to address human rights violations in a consistent and effectivemanner points to the desperate need for an independent, impartial andcompetent human rights watchdog in the country – such as a NationalHuman Rights Commission. Moreover, the Government of Bangladeshshould repeal the Special Powers Act as it has pledged to do.Finally, OMCT would insist upon the need for the Government to fullyimplement the Beijing Rules and Platform for Action, the Declaration onthe Elimination of Violence Against Women and to withdraw the reservationsto the Convention on the Elimination of All Forms of DiscriminationAgainst Women as these instruments provide detailed protection forwomen against violence in the family, in the community and at the handsof State officials.1 “The Government of the People’s Republic of Bangladesh does not consider asbinding upon itself the provisions of articles 2, [.....] and 16 (1) (c) and [.....] as35

Violence Against Women: 10 Reports / Year 2003they conflict with Sharia law based on Holy Quran and Sunna.”http://www.unhchr.ch/html/menu3/b/treaty9_asp.htm2 Population Census, 2001, Bangladesh Bureau of Statistics.3 The National Policy for the Advancement of Women, Government of Bangladesh.4 A Baseline Survey on Grassroots Distress Women conducted by Naogaon HumanRights Development Association, 2000.5 UNICEF, statistics by country, available athttp://www.unicef.org/infobycountry/bangladesh_statistics.html.6 Ministry of Women and Children Affairs, Government of Bangladesh.7 Baseline on Grassroots Distress Women, Ibid.8 Ministry of Women and Children Affairs, Government of Bangladesh.9 Library and Documentation Centre, Bangladesh National Women’s LawyersAssociation, 2002.10 BANGLAPEDIA: National Encyclopedia of Bangladesh- vol. 3.11 Baseline on Grassroots Distress Women, Ibid.12 Dowry – Poor People Perspective, a study conducted for UNDP by PromPT,1996.13 Human Rights Situation Report 2002, Bangladesh Institute of Human Rights,Bangladesh Institute for Human Rights.14 BANGLAPEDIA: National Encyclopedia of Bangladesh- vol. 8.15 Editorial, Daily Janakantha, May 03, 2003 issue.16 Bangladesh National Women’s Lawyers Association, Violence against Women inBangladesh 2001.17 A research on Rape and Burden of Proof on Women and Children, 1999 byBNWLA.18 Anti-trafficking Programs and Promoting Human Rights – A Grassroots Initiativeby Rights Jessore 2002.19 Study on the Socio-economic Dimension on Trafficking Girl Child by INCIDIN,2000.20 “54(1) Any police officer may, without an order from a Magistrate and without awarrant, arrest-firstly, any person who has been concerned in any cognizableoffence or against whom a reasonable complaint has been made or credible informationhas been received, or a reasonable suspicion exists of his having been soconcerned;secondly, any person having in his possession without lawful excuse, the burdenof proving which excuse shall lie on such person, any implement of housebreaking;thirdly, any person who has been proclaimed as an offender either under this Codeor by order of the [Government];fourthly, any person in whose possession anything is found which may reasonablybe suspected to be stolen property [and] who may reasonably be suspected ofhaving committed an offence with reference to such thing;fifthly, any person who obstructs a police-officer while in the execution his duty,or who has escaped, or attempts to escape, from lawful custody;36

Bangladeshsixthly, any person reasonably suspected of being a deserter from [the armedforces of Bangladesh];seventhly, any person who has been concerned in, or against whom a reasonablecomplaint has been made or credible information has been received or a reasonablesuspicion exists of his having been concerned in, any act committed at anyplace out of Bangladesh, which, if committed in Bangladesh, would have beenpunishable as an offence, and for which he is, under any law relating to extraditionor under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehendedor detained in custody in Bangladesh;eighthly, any released convict committing a breach of any rule made under section565, sub-section (3);ninthly, any person for whose arrest a requisition has been received from anotherpolice-officer, provided that the requisition specified the person to be arrested andthe offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officerwho issued the requisition.”37

Violence Against Women: 10 Reports / Year 2003Committee on the Rights of the ChildTHIRTY-FOURTH SESSION – 15 SEPTEMBER - 3 OCTOBER 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 44 OF THE CONVENTIONCONCLUDING OBSERVATIONS BY THE COMMITTEE ON THE RIGHTS OF THECHILD: BANGLADESH1. The Committee considered the second periodic report of Bangladesh(CRC/C/65/Add.22) at its 912th and 913th meetings (seeCRC/C/SR.912 and 913), held on 30 September 2003, and adopted atthe 918th meeting (see CRC/C/SR.918), held on 3 October 2003, thefollowing concluding observations.A. Introduction2. The Committee welcomes the submission of the State party’s secondperiodic report and the additional information provided in the writtenreplies to its list of issues (CRC/C/Q/BGD/2), which gave comprehensiveand clear information about the implementation of theConvention on the Rights of the Child in Bangladesh. The oral presentationsallowed for necessary updates and informed the Committeeabout initiatives and measures planned. The Committee acknowledgesthat the presence of a high-level, cross-sectoral delegation directlyinvolved with the implementation of the Convention allowed for abetter understanding of the rights of the child in the State party.38

BangladeshB. Follow-up measures undertaken and progress achieved bythe State party3. The Committee welcomes the positive developments in the area ofhuman rights such as the formulation of a revised National Plan ofAction for Children; the adoption of the National Policy for SafeWater Supply and Sanitation; the 2002 National Plan of Action tocombat sexual abuse and exploitation, including trafficking; the 2000Suppression of Violence against Women and Children Act; the 2002Acid Control Act; the 2002 Acid Crimes Prevention Act; the 2002law safeguarding the speedy progress of trials; and the withdrawal ofthe 2002 Public Safety Act.4. The Committee recognizes with appreciation that the State party hasmade clear and visible progress, in some fields to a remarkable extent,in the field of child nutrition, health, education and labour. It alsonotes that the State party strengthened its cooperation with non-governmentalorganizations (NGOs).5. The Committee welcomes the ratification by the State party of theOptional Protocols to the Convention on the Rights of the Child onthe sale of children, child prostitution and child pornography, and onthe involvement of children in armed conflict.6. The Committee also expresses its appreciation to the State party forhaving ratified ILO Convention No. 182 concerning the Prohibitionand Immediate Action for the Elimination of the Worst Forms ofChild Labour of 1999, the International Covenant on Civil andPolitical Rights and the International Covenant on Economic, Socialand Cultural Rights of 1966, and the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment of1984.C. Factors and difficulties impeding the implementation ofthe Convention7. The Committee recognizes that poverty and recurrent natural disastershave impeded the full implementation of the Convention.39

Violence Against Women: 10 Reports / Year 2003D. Principal subjects of concern, suggestions and recommendations1. General measures of implementationThe Committee’s previous recommendations8. The Committee regrets that some of the concerns it expressed and therecommendations it made (CRC/C/15/Add.74) after its considerationof the State party’s initial report (CRC/C/3/Add.38), particularly thosecontained in paragraphs 28-47, regarding the withdrawal of the reservations(para. 28), violence against children (para. 39), the review oflegislation (para. 29), data collection (para. 14), birth registration(para. 37), child labour (para. 44) and the juvenile justice system(para. 46) have been insufficiently addressed. Those concerns and recommendationsare reiterated in the present document.9. The Committee urges the State party to implement the previous recommendationsthat have not yet been implemented, as well as the recommendationscontained in the present concluding observations.Reservations10. The Committee remains deeply concerned about the reservations toarticles 14, paragraphs 1 and 21 of the Convention, which mightimpede the full implementation of the Convention, but welcomes theinformation from the delegation that the State party is willing to continueto review those reservations with a view to their withdrawal.11. In light of the Vienna Declaration and Programme of Action (1993),the Committee reiterates its previous recommendation that the Stateparty withdraw its reservations to the Convention (art. 14, paras. 1 and21) and recommends that the State party take into account the experienceof other States parties in this regard.Legislation12. The Committee notes with appreciation the legislative measures thathave been undertaken by the State party in order to ensure the imple-40

Bangladeshmentation of the Convention. Nevertheless, the Committee remainsconcerned that domestic legislation and customary law are not fullycompatible with all the principles and provisions of the Conventionand that laws implementing the Convention are frequently notapplied, particularly in rural areas.13. The Committee recommends that the State party take all effectivemeasures to harmonize its domestic legislation fully with the provisionsand principles of the Convention, in particular with regard toexisting minimum ages of criminal responsibility and of marriage,child labour and harmful traditional practices affecting children.Coordination14. The Committee notes that the Ministry of Women and Child Affairswas given the mandate to coordinate the implementation of theConvention. It welcomes the reactivation of the Inter-ministerialCommittee, which includes representatives from civil society andwhich will coordinate the efforts of the various ministries contributingto the implementation of the Convention. The Committee further welcomesthe continued endeavour of the Ministry of Women and ChildAffairs to establish within this Ministry a Directorate for Children’sAffairs for, inter alia, the promotion and coordination of the implementationof the Convention. However, the Committee remains concernedthat policies, and the bodies implementing them, may beinsufficiently coordinated.15. The Committee recommends that the State party take all necessarymeasures to improve coordination at the national and local levelamong the different bodies involved in implementing the Conventionby:(a) Providing the Ministry of Women and Child Affairs, including theDirectorate of Children’s Affairs, with a clear mandate and adequatehuman and financial resources to carry out its coordinationfunctions;(b) Expediting the establishment of the Directorate for Children’sAffairs.41

Violence Against Women: 10 Reports / Year 2003Independent monitoring structures16. The Committee welcomes the information from the delegation concerningthe intention to establish a National Human RightsCommission and an Ombudsperson; however, it remains concerned atthe absence of an independent mechanism with a mandate to monitorregularly and evaluate progress in the implementation of theConvention and which is empowered to receive and address complaints,including from children.17. The Committee recommends that the State party:(a) Expedite the process to establish an independent and effectivemechanism in accordance with the Principles relating to the statusof national institutions for the promotion and protection of humanrights (the Paris Principles, General Assembly resolution 48/134,annex) and the Committee’s general comment No. 2 on the role ofindependent human rights institutions;(b) Ensure that it is provided with adequate human and financialresources and is easily accessible to children with a mandate:To monitor the implementation of the Convention;To deal with complaints from children in a child-sensitive andexpeditious manner;To provide remedies for violations of children’s rights under theConvention;(c) Consider seeking further technical assistance in this regard from,among others, the United Nations Children’s Fund (UNICEF) andthe Office of the United Nations High Commissioner for HumanRights (OHCHR).National plan of action18. The Committee welcomes the State party’s commitment to formulateby the end of 2003 a national plan of action based on the Convention,which would be monitored by the National Children Council and bythe Ministry for Women and Children Affairs.42

Bangladesh19. The Committee recommends that the State party:(a) Complete its activities for the drafting of a national plan of actionby the end of 2003;(b) Involve a broad spectrum of civil society groups, including children,in the formulation and the implementation of the nationalplan of action;(c) Ensure that the national plan of action includes all rightsenshrined in the Convention, and the millennium developmentgoals, as well as the plan of action foreseen in the outcome document,“A World Fit for Children” of the General Assembly specialsession on children;(d) Provide the National Children Council with the necessaryresources for an effective implementation and monitoring of thenational plan of action;(e) Create an executive committee within the National ChildrenCouncil.Resources for children20. The Committee notes that budgetary allocations to the social sector,including education, health, family and social welfare, has increasedover the past two years, and that the State party is preparing a PovertyReduction Strategy Paper (PRSP) which includes children’s concernsand rights. However, the Committee remains concerned that resourcesare insufficient for the full implementation of the provisions of theConvention, in particular those relating to the economic, social andcultural rights of children, in accordance with article 4 of theConvention.21. The Committee recommends that the State party pay particular attentionto the full implementation of article 4 of the Convention by prioritizingbudgetary allocations to ensure implementation of theeconomic, social and cultural rights of children, in particular thosebelonging to economically and geographically disadvantaged groups,including tribal children, to the maximum extent of available43

Violence Against Women: 10 Reports / Year 2003resources (at the national and local levels) and continue and strengthenits efforts to receive additional funding within the framework ofinternational cooperation. In addition, the National Plan of Action forChildren should be integrated into its PRSP.Data collection22. The Committee welcomes the annual Multiple Indicator ClusterSurvey that allows for the systematic collection of data on a sample ofchildren to analyze their standard of living and to provide nationalestimates. However, the Committee is concerned at the lack of an adequatedata collection mechanism within the State party to allow forthe systematic and comprehensive collection of disaggregated quantitativeand qualitative data with respect to all areas covered by theConvention and in relation to all groups of children.23. The Committee recommends that the State party:(a) Further develop the Multiple Indicator Cluster Survey in order togain a deeper insight into the situation of children and their families;(b) Strengthen its efforts to establish a comprehensive and permanentmechanism to collect data, disaggregated by sex, age, and ruraland urban area, incorporating all the areas covered by theConvention and covering all children below the age of 18 years,with emphasis on those who are particularly vulnerable, such asminority and tribal children;(c) Develop indicators to effectively monitor and evaluate progressachieved in the implementation of the Convention and assess theimpact of policies that affect children;(d) Continue and strengthen its collaboration, inter alia, with theUnited Nations Statistics Division and UNICEF.Training/dissemination of the Convention24. The Committee takes note of the measures undertaken by the Stateparty to disseminate the principles and provisions of the Convention,44

Bangladeshsuch as translation of the Convention into the national language, thedistribution of the Convention to relevant authorities and media campaigns.However, the Committee remains concerned that the publicawareness of the Convention remains low and that many relevantauthorities, for instance within the juvenile justice system, do notreceive adequate training on children’s rights.25. The Committee recommends that the State party strengthen its awareness-raisingefforts through, inter alia, systematic education and trainingon the rights of the child for all professional groups working forand with children, in particular parliamentarians, judges, lawyers, lawenforcement officials, civil servants, municipal workers, personnelworking in institutions and places of detention for children, teachers,health personnel, including psychologists, social workers, religiousleaders, as well as children and their parents. The Committee furtherrecommends that the State party translate the Convention into the languagesof tribal peoples.2. Definition of the child26. The Committee is concerned about the various legal minimum ages,which are inconsistent, discriminatory and/or too low. The Committeeis also deeply concerned at the fact that the Majority Act 1875, settingthe age of majority at 18 years, has no effect “on the capacity of anyperson in relation to marriage, dowry, divorce and adoption or on thereligion and religious customs of any citizen” (CRC/C/65/Add.22,para. 45). The Committee is particularly concerned at the very lowage of criminal responsibility (7 years).27. The Committee strongly recommends that the State party:(a) Raise the minimum age of criminal responsibility to an internationallyacceptable level;(b) Fix a minimum age for admission to employment, in line withinternationally accepted standards;(c) Ensure that domestic legislation on minimum ages is respectedand implemented throughout the country.45

Violence Against Women: 10 Reports / Year 20033. General principlesNon-discrimination28. The Committee welcomes the measures undertaken by the State partyto enhance the situation of girls, especially in relation to education. Itremains deeply concerned about persistent discriminatory attitudestowards girls, which are deeply rooted in traditional stereotypes andlimit access to resources and services. The Committee is also concernedabout discrimination against children with disabilities, streetchildren, child victims of sexual abuse and exploitation, tribal childrenand other vulnerable groups.29. The Committee recommends that the State party take adequate measuresto ensure implementation of the principle of non-discriminationin full compliance with article 2 of the Convention, and strengthen itsproactive and comprehensive efforts to eliminate discrimination onany grounds and against all vulnerable groups. The Committee alsorecommends that the State party undertake an education campaign forboys and men on gender issues and sex discrimination.30. The Committee requests that specific information be included in thenext periodic report on the measures and programmes relevant to theConvention undertaken by the State party to follow up on the DurbanDeclaration and Programme of Action adopted at the WorldConference against Racism, Racial Discrimination, Xenophobia andRelated Intolerance, and taking into account the Committee’s generalcomment No. 1 on article 29, paragraph 1, of the Convention (aims ofeducation).Best interests of the child31. The Committee notes that the principle of the best interests of thechild has been given increased importance and the State party’sefforts to raise awareness of this general principle, inter alia,through media campaigns, but remains concerned that the best interestsof the child are not fully taken into consideration in policy-makingand implementation and other administrative and judicialdecisions.46

Bangladesh32. The Committee recommends that the State party take all appropriatemeasures to ensure that the principle of the best interests of the childis integrated into all legislation, as well as in judicial and administrativedecisions and in projects, programmes and services which havean impact on children. The Committee also encourages the State partyto take all necessary measures to ensure that traditional practices andcustomary law do not impede the implementation of this general principle,notably through raising awareness among community leadersand within society at large.Right to life33. Despite the information that the death penalty has never been carriedout against juvenile offenders in the State party, the Committeeremains seriously concerned that capital punishment may be imposedfor offences committed by persons from the age of 16 years and over,contrary to article 37 (a) of the Convention.34. The Committee strongly recommends that the State party take immediatesteps to ensure that the imposition of the death penalty forcrimes committed by persons while under 18 is explicitly prohibitedby law.Respect for the views of the child35. The Committee notes that, in practice, children are given a voice insome legal proceedings, subject to the discretion of the judge.However, while the National Plan of Action 1997-2002 emphasizeschildren’s participation, the Committee is concerned that traditionalattitudes impede full respect for the views of the child, especiallywithin families, educational institutions and the juvenile justice system.36. The Committee recommends that the State party:(a) Promote and facilitate respect for the views of children and theirparticipation in all matters affecting them in all spheres of society,particularly at the local levels and in traditional communities, inaccordance with article 12 of the Convention;47

Violence Against Women: 10 Reports / Year 2003(b) Provide educational information to, inter alia, parents, teachers,government and local administrative officials, the judiciary, traditionaland religious leaders and society at large on children’s rightto participate and to have their views taken into account;(c) Amend national legislation so that the principle of respect for theviews of the child is recognized and respected, inter alia in custodydisputes and other legal matters affecting children.4. Civil rights and freedomsBirth registration37. The Committee welcomes the efforts undertaken by the State partyregarding the registration of births, but remains concerned at the lackof a functional birth registration system as well as the low publicawareness of the obligation to register children after birth.38. In light of article 7 of the Convention, the Committee urges the Stateparty to continue and strengthen its efforts to ensure a coordinatedsystem for registration of all children at birth, covering the whole ofthe country, including through awareness-raising campaigns, as wellas to continue its cooperation in this regard with, inter alia, UNICEFand relevant international NGOs.Name and nationality39. In light of article 7 of the Convention, the Committee is concerned atthe apparent discrimination in respect of nationality, and that a child’sname and nationality are derived solely from her/his father and nother/his mother.40. The Committee recommends that the State party amend its legislationso that citizenship can be passed on to children from either theirfather or their mother. It also encourages the State party to introduceproactive measures to prevent statelessness.48

BangladeshTorture and other cruel, inhuman or degrading treatment or punishment41. While taking note of the efforts by the State party to raise publicawareness of the ill-treatment of children, the Committee is concernedat reports of ill-treatment and violence against children in State institutionssuch as orphanages and rehabilitation centres, including bylaw enforcement agents, as well as at the solitary confinement of juvenileand child prisoners. The Committee is also concerned at reportsof violence against street children. Furthermore, the Committeeexpresses its deep concern at the reported inhuman and degradingpunishment carried out by order of traditional village councils (“shalishes”)as well as at the increasing incidents of acid attacks on womenand girls.42. The Committee strongly recommends that the State party:(a) Review its legislation (inter alia, Code of Criminal Procedure,1898) with the aim of prohibiting the use of all forms of physicaland mental violence, also within educational and other institutions;(b) Conduct a study to assess the nature and extent of torture, illtreatment,neglect and abuse of children, to assess the inhumanand degrading treatment of children attributable to “shalishes”,and effectively to implement policies and programmes as well asto amend and adopt laws to address these issues;(c) Establish effective procedures and mechanisms to receive, monitorand investigate complaints, including intervening where necessary,and investigate and prosecute cases of torture, neglect andill-treatment, ensuring that the abused child is not revictimizedthrough legal proceedings and that his or her privacy is protected;(d) Undertake all necessary measures to prevent and punish policeviolence;(e) Take all necessary effective measures to ensure the implementationof the 2002 Acid Control Act and of the 2002 Acid ControlPrevention Act;49

Violence Against Women: 10 Reports / Year 2003(f) Provide care, recovery, compensation and reintegration for victims;(g) Take into consideration the recommendations of the Committeeadopted at its day of general discussion on the theme “Violenceagainst children” (CRC/C/100, para. 688 and CRC/C/111, paras.701-745);(h) Seek assistance from, inter alia, UNICEF and the World HealthOrganization (WHO).Corporal punishment43. The Committee expresses its profound concern at the prevalence ofcorporal punishment in schools, as well as at the fact that corporalpunishment is still legal and widely practised within the legal system,in educational and other institutions and in the family.44. The Committee recommends that the State party, as a matter ofurgency, review existing legislation and explicitly prohibit all formsof corporal punishment in the family, schools and institutions, as wellas carry out public education campaigns about the negative consequencesof ill-treatment of children, and promote positive, non-violentforms of discipline as an alternative to corporal punishment, particularlyat the local level and in traditional communities.5. Family environment and alternative careChildren deprived of family environment45. The Committee is concerned that the current facilities for alternativecare of children deprived of their family environment are insufficient,do not provide enough protection and that large numbers of childrendo not have access to such facilities.46. The Committee recommends that the State party urgently take measuresto increase alternative care opportunities for children and, inline with article 25 of the Convention, conduct periodic reviews of theplacement of children and ensure that institutionalization is used only50

Bangladeshas a measure of last resort. The Committee also recommends that theState party take effective measures to prevent abandonment of children,inter alia, by providing adequate support to families.Adoption47. In light of article 21 of the Convention, the Committee is concernedabout the lack of a uniform adoption law in the State party.48. The Committee recommends that the State party establish uniformlegal provisions for domestic as well as intercountry adoption, andreiterates its previous recommendation that the State party considerbecoming a party to the Hague Convention on Protection of Childrenand Cooperation in Respect of Intercountry Adoption of 1993.Abuse, neglect and violence49. The Committee is concerned at the high incidence of abuse, includingsexual abuse, within the State party, and at the lack of effective measuresto combat this phenomenon. The Committee is particularly concernedthat existing legislation, notably the Suppression of Violenceagainst Women and Children Act 2000, is rarely implemented andthat the prosecution of abuse against women is rare even in very seriouscases because of societal attitudes. The Committee is further concernedthat the current legislation protects children from abuse onlyup to the age of 14 years. In addition, the Committee is concerned thatchild victims of abuse and/or exploitation are placed in “safe custody”,which may result in depriving them of their liberty for as longas 10 years.50. The Committee recommends that the State party:(a) Continue and strengthen its efforts to address the issue of childabuse, including through ensuring there is public awareness of therelevant legislation;(b) Assess the scope, nature and causes of child abuse, particularlysexual abuse, with a view to adopting a comprehensive strategyand effective measures and policies and to changing attitudes;51

Violence Against Women: 10 Reports / Year 2003(c) Provide adequate protection and assistance to child victims ofabuse in their homes, whenever possible, and take appropriatemeasures to prevent the stigmatization of victims;(d) Ensure that all children below the age of 18 years are specificallyprotected under domestic legislation against abuse and exploitation;(e) Ensure that the placement of children victims of abuse andexploitation in institutions for reasons of protection and treatmentis used only as a measure of last resort and for the shortest possibleperiod of time;(f) Take into consideration the recommendations of the Committeeadopted at its days of general discussion on the issue of “Violenceagainst children” (CRC/C/100, para. 688 and CRC/C/111, paras.701-745).6. Basic health and welfare51. The Committee notes with appreciation the efforts undertaken and theachievements made by the State party to reduce infant and under-5mortality rates, as well as the eradication of polio and the improvedimmunization coverage. Nevertheless, the Committee remains deeplyconcerned:(a) That infant and under-5 mortality rates remain high, and thatstunting, wasting and severe malnutrition among both childrenand their mothers are extremely widespread;(b) At the unhygienic practices surrounding childbirth, which resultsin, among other things, tetanus, and at the lack of prenatal care;(c) At the low level of exclusive breastfeeding, which contributes tomalnutrition;(d) At the low level of awareness among the population, particularlyin rural areas, of the need to use hygienic, sanitary practices;(e) At the high rate of children dying as a result of accidents, such asdrowning, and that little is done by the State party to preventthese deaths;52

Bangladesh(f) At the lack of infrastructure for access to health facilities, notablyin rural areas.52. The Committee recommends that the State party:(a) Ensure that appropriate resources are allocated for the healthsector and develop and implement comprehensive policies andprogrammes for improving the health situation of children;(b) Facilitate greater access to free primary health services throughoutthe country as well as prevent and combat malnutrition,paying particular attention to pre- and antenatal care for both childrenand their mothers;(c) Enhance its efforts to promote proper breastfeeding practices;(d) Enhance the efforts to educate the population in hygienic, sanitarybehaviour, notably through awareness-raising campaigns and programmes;(e) Explore additional avenues for cooperation and assistance withthe aim of improving child health with, inter alia, WHO andUNICEF.Environmental pollution53. The Committee welcomes the adoption of the National Policy forSafe Water Supply and Sanitation. However, the Committee is concerned,despite the measures taken by the State party, about the extentof water contamination, specifically with arsenic, air pollution and thelow availability of sanitation facilities which have serious negativeconsequences for children’s health and development.54. The Committee urges the State party:(a) To continue and strengthen its efforts to reduce contamination andpollution of air and water as well as improve sanitation facilities,including by strengthening the implementation of the NationalPolicy for Safe Water Supply and Sanitation;53

Violence Against Women: 10 Reports / Year 2003(b) To intensify awareness-raising campaigns and educational programmesin order to inform children and adults about appropriatebehaviours protecting them against risks.Children with disabilities55. The Committee is concerned at the situation of children with disabilities,and societal discrimination against these children, including theirexclusion with the exception of the visually impaired, from the educationalsystem.56. The Committee recommends that the State party:(a) Undertake studies to determine the causes of, and ways to prevent,disabilities in children;(b) In light of the Standard Rules on the Equalization ofOpportunities for Persons with Disabilities (General Assemblyresolution 48/96) and the Committee’s recommendations adoptedat its day of general discussion on the issue of “The rights of childrenwith disabilities” (CRC/C/69, paras. 310-339), furtherencourage their integration into the regular educational systemand inclusion into society, including by providing special trainingto teachers and by making schools more accessible to childrenwith disabilities;(c) Undertake an awareness-raising campaign to sensitize the publicto the rights and special needs of children with disabilities;(d) Take the necessary measures to provide children with disabilitieswith appropriate care and services, and ensure that they are registeredat birth;(e) Seek technical assistance cooperation for the training of professionalstaff working with and for children with disabilities fromWHO, among others.HIV/AIDS57.The Committee is concerned at the lack of systematic data collection54

Bangladeshon the prevalence of HIV/AIDS, making it more difficult to addressthe issue and to provide victims with care and support. It also notesthat national estimates of the prevalence of the pandemic are significantlylower than those presented by UNAIDS and WHO.58. The Committee recommends that the State party:(a) Undertake a study to estimate the prevalence of HIV/AIDS withinthe country;(b) Undertake appropriate measures to prevent HIV/AIDS, takinginto account the Committee’s general comment No. 3 onHIV/AIDS and the rights of children;(c) Seek further technical assistance from, inter alia, UNICEF andUNAIDS.Adolescent health59. The Committee is concerned that insufficient attention has been givento adolescent health issues, particularly reproductive health concerns,which is reflected in the large number of teenage and unwanted pregnancies.60. The Committee recommends that the State party:(a) Undertake a comprehensive and multidisciplinary study to assessthe scope and nature of adolescent health problems, including thenegative impact of sexually transmitted infections, and continueto develop adequate policies and programmes;(b) Increase its efforts to promote adolescent health policies;(c) Strengthen the programme of health education in schools;(d) Undertake further measures, including the allocation of adequatehuman and financial resources, to evaluate the effectiveness oftraining programmes in health education, in particular as regardsreproductive health, and to develop youth-sensitive and confidentialcounselling, care and rehabilitation facilities that are accessiblewithout parental consent when this is in the best interests ofthe child;55

Violence Against Women: 10 Reports / Year 2003(e) Seek technical cooperation from, among others, the UnitedNations Population Fund, UNICEF, and WHO.Harmful traditional practices61. The Committee is deeply concerned at the existence of harmful traditionalpractices, such as child marriages and dowry-related violence,which are widespread and pose very serious threats, in particular tothe girl child.62. The Committee recommends that the State party continue and intensifyits efforts to eradicate harmful traditional practices, by strengtheningawareness-raising programmes and enforcement of the law.7. Education, leisure and cultural activities63. The Committee welcomes the progress made by the State party in thefield of education, notably with regard to increases in primary andsecondary enrolments, the reduction in gender disparities in enrolmentand improvement in the literacy rates. The Committee also noteswith great appreciation the abolition of tuition fees for primaryschools and the establishment of a Tk 500 million stipend programme,of the “food for education” programme, and the pilot projecton early childhood education. However, the Committee is concernedthat challenges remain in the above-mentioned areas, that free compulsoryeducation ends after grade 5, that the school dropout rate ishigh and that gender-based discrimination persists within schools.Other concerns include reports of abuse and sexual molestation,especially of girls, inaccessibility to schools, inadequate sanitationand the misuse of allocated resources.64. The Committee notes with appreciation the efforts made by the Stateparty to monitor the quality of education in the madrasas. However,it is concerned about the narrow content of the education providedwithin these schools.65. The Committee recommends that the State party:(a) Take effective measures to raise the maximum age of compulsory56

Bangladesheducation, and to increase enrolment rates through, inter alia, raisingawareness of the importance of education and taking measuresto improve the provision and quality of education;(b) Continue to address gender-based discrimination and other difficultiesencountered by girls within the educational system andschool environment;(c) Monitor and evaluate existing programmes on early childhoodeducation and development, and extend services, especially parentingeducation and education for caregivers to all regions;(d) Provide appropriate sanitation facilities, especially for females, inall schools;(e) Provide appropriate training for teachers in order to create a morechild-friendly school environment;(f) Encourage the participation of children at all levels of school life;(g) Seek assistance from UNICEF, the United Nations Educational,Scientific and Cultural Organization and relevant NGOs.66. The Committee also recommends that the State party continue andstrengthen its efforts to streamline the education given in the madrasasto ensure more compatibility with formal public education.8. Special protection measuresRefugee and internally displaced children67. The Committee is very concerned about the difficult conditions underwhich some refugee children, especially children belonging to theRohingya population from Myanmar, are living, and that many ofthese children and their families do not have access to legal proceduresthat could grant them legal status. Furthermore, the Committeeis concerned at the lack of a national refugee policy and that refugeechildren are not registered at birth.57

Violence Against Women: 10 Reports / Year 200368. The Committee recommends that the State party:(a) Adopt a national refugee legislation and accede to the Conventionrelating to the Status of Refugees of 1951 and its Protocol of1967;(b) Grant all refugee children and their families immediate access torelevant procedures determining refugee status;(c) In collaboration with and with support from international agencies,undertake effective measures to improve the living conditionsof refugee families and children, particularly with regard toeducational and health-care services;(d) Provide unaccompanied refugee children with adequate care, educationand protection;(e) Register all refugee children born in Bangladesh.Economic exploitation, including child labour69. The Committee notes that, through education, stipend, recovery andsocial reintegration programmes, progress has been made in reducingthe economic exploitation of children, although this has been confinedmainly to the formal sector of the economy. However, theCommittee remains deeply concerned:(a) At the high prevalence of child labour and the fact that the phenomenonis widely accepted in society;(b) At the wide variety of minimum ages for admission to employmentin different economic sectors, several of which do notadhere to international standards;(c) That many child labourers, notably children working as domesticworkers, are very vulnerable to abuse, including sexual abuse,completely lack protection and are deprived of the possibility tomaintain contact with their families.58

Bangladesh70. The Committee recommends that the State party:(a) Continue and strengthen its efforts to eradicate child labour,including in the informal sector, in particular by addressing itsroot causes through poverty reduction programmes and strengtheningof the children’s component in the new PRSP, and facilitationof access to education;(b) Ratify and implement ILO Convention No. 138 concerning theMinimum Age for Admission to Employment;(c) Increase the number of labour inspectors and develop a comprehensivechild labour monitoring system in collaboration withNGOs, community-based organizations and ILO/IPEC;(d) Undertake a study of child labour in the agricultural and informalsectors with a view to developing policies and programmes toeradicate this phenomenon.Sexual exploitation, including prostitution71. While welcoming the National Plan of Action against sexual abuseand exploitation, the Committee is deeply concerned at the prevalenceof sexual exploitation of children and the social stigmatization of thevictims of such exploitation, as well as at the lack of social and psychologicalrecovery programmes and the very limited possibilities forvictims to be reintegrated into society. The Committee is also concernedabout the widespread practice of forcing children into prostitution.72. The Committee recommends that the State party:(a) Fully and effectively implement the National Plan of Actionagainst sexual abuse and exploitation, in order to ensure appropriatepolicies, laws and programmes for the prevention, protection,recovery and reintegration of child victims, in line with theDeclaration and Agenda for Action and the Global Commitmentadopted at the 1996 and 2001 World Congresses againstCommercial Sexual Exploitation of Children;59

Violence Against Women: 10 Reports / Year 2003(b) Ensure that victims of sexual exploitation are never considered asoffenders, but rather benefit from programmes for their recoveryand reintegration;(c) Investigate, prosecute and sentence perpetrators of sexualoffences against children;(d) Develop and monitor a code of conduct for law enforcement officials;(e) Seek assistance from, among others, UNICEF.Sale, trafficking and abduction73. The Committee is deeply concerned at the high incidence of traffickingin children for purposes of prostitution, domestic service and toserve as camel jockeys and at the lack of long-term, concentratedefforts on the part of the State party to combat this phenomenon.74. The Committee recommends that the State party:(a) Undertake all necessary efforts to prevent and combat domesticand cross-border child trafficking, including through internationalcooperation;(b) Take all necessary measures for the recovery and reintegration ofchildren victims of trafficking;(c) Investigate, prosecute and sentence perpetrators of trafficking,including through international cooperation;(d) Seek assistance from, among others, UNICEF and theInternational Organization for Migration.Children living and/or working on the streets75. The Committee notes the efforts undertaken by the State party toprovide children living or working on the streets with access tohealth services and education. However, the Committee is concernedat the large population of children living or working on the streetsand at the extremely difficult conditions under which this very60

Bangladeshmarginalized group is living, and at the lack of sustained efforts toaddress this phenomenon. The Committee is further concerned at theincidence of violence, including sexual abuse and physical brutality,directed at these children by police officers.76. The Committee recommends that the State party:(a) Ensure that children living or working on the streets are providedwith adequate nutrition, clothing, housing, health care and educationalopportunities, including vocational and life-skills training,in order to support their full development;(b) Ensure that these children are provided with recovery and reintegrationservices for physical, sexual and substance abuse; protectionfrom police brutality; and services for reconciliation withfamilies;(c) Undertake a study on the causes and scope of this phenomenonand establish a comprehensive strategy to address the high andincreasing numbers of children living or working on the streetswith the aim of preventing and reducing this phenomenon.Administration of juvenile justice77. The Committee acknowledges the efforts made by the State party toimprove the juvenile justice system. However, the Committee remainsconcerned at the limited progress achieved in establishing a functioningjuvenile justice system throughout the country. In particular, theCommittee is concerned at:(a) The minimum age of criminal responsibility (7 years), whichremains far too low;(b) The sentencing to life imprisonment of children from the age of 7years and to the death penalty of children from the age of 16years;(c) The absence of juvenile courts and judges in some parts of theState party;61

Violence Against Women: 10 Reports / Year 2003(d) The extensive discretionary powers of the police, reportedlyresulting in incarceration of street children and child prostitutes;(e) The use of caning and whipping as a sentence for juvenile offenders;(f) The failure to ensure full respect for the right to a fair trial,including legal assistance for alleged child offenders and the verylong periods of pre-trial detention;(g) The detention of children with adults and in very poor conditions,without access to basic services.78. The Committee recommends that the State party ensure the fullimplementation of juvenile justice standards, in particular articles 37,39 and 40 of the Convention, and other United Nations standards inthe field of juvenile justice, including the United Nations StandardMinimum Rules for the Administration of Juvenile Justice (theBeijing Rules) and the United Nations Guidelines for the Preventionof Juvenile Delinquency (the Riyadh Guidelines), the United NationsRules for the Protection of Juveniles Deprived of Their Liberty, theVienna Guidelines for Action on Children in the Criminal JusticeSystem, in the light of the Committee’s day of general discussion onthe administration of juvenile justice, held in 1995. In particular, theCommittee recommends that the State party:(a) Raise the minimum age of criminal responsibility to an internationallyacceptable level;(b) Ensure that the imposition of the death penalty, of life imprisonmentwithout possibility of release, and of caning and whippingas sanctions for crimes committed by persons while under 18 isexplicitly prohibited by law;(c) Ensure the full implementation of the right to a fair trial, includingthe right to legal or other appropriate assistance;(d) Protect the rights of children deprived of their liberty and improvetheir conditions of detention and imprisonment, including byguaranteeing separation of children from adults in prisons and inpre-trial detention places all over the country;62

Bangladesh(e) Establish an independent child-sensitive and accessible system forthe reception and processing of complaints by children;(f) Request technical assistance in the area of juvenile justice andpolice training from, inter alia, OHCHR and UNICEF.Minorities79. The Committee is deeply concerned about the poor situation of childrenof the Chittagong Hill Tracts, and other religious, national andethnic minorities, tribal groups or similar marginalized groups and thelack of respect for their rights, including the rights to food, to healthcare, to education and to survival and development, to enjoy their ownculture and to be protected from discrimination.80. The Committee urges the State party to gather additional informationon all minorities or similar marginalized groups of the population, andto elaborate policies and programmes to ensure the implementation oftheir rights without discrimination, taking into account theCommittee’s recommendations adopted at its day of general discussionon the theme “The rights of indigenous children”.9. Dissemination of the report81. In light of article 44, paragraph 6, of the Convention, the Committeerecommends that the second periodic report and written replies submittedby the State party be made widely available to the public atlarge and that the publication of the report be considered, alongwith the relevant summary records and concluding observationsadopted by the Committee. The Committee notes with appreciationthe intention of the State party to translate and widely disseminate thepresent concluding observations. Such documents should be widelydistributed in order to generate debate and awareness of theConvention and its implementation and monitoring within theGovernment, the Parliament and the general public, including concernedNGOs.63

Violence Against Women: 10 Reports / Year 200310. Next report82. The Committee, aware of the delay in the State party’s reporting,wishes to underline the importance of a reporting practice that is in fullcompliance with the provisions of article 44 of the Convention. Childrenhave the right that the committee in charge of regularly examining theprogress made in the implementation of their rights, does have the opportunityto do so. In this regard, regular and timely reporting by States partiesis crucial. As an exceptional measure, in order to help the State partycatch up with its reporting obligations so as to be in full compliance withthe Convention, the Committee invites the State party to submit its thirdand fourth periodic reports in one consolidated report by 1 September2007, the date on which the fourth report is due. The consolidated reportshould not exceed 120 pages (see CRC/C/118). The Committee expectsthe State party to report thereafter every five years, as foreseen by theConvention.64

Violence against Women in BrazilA Report to the Committee on Economic, Socialand Cultural RightsContents1. Preliminary Observations .............................................................................................................................. 671.1 Background Information on Brazil .................................................................................. 681.2 Brazil’s International Obligations ................................................................................... 692. General Observations on the Status of Women in Brazil ............................ 702.1 Legal Status of Women ..................................................................................................................... 702.2 Women’s Educational Opportunities ............................................................................. 712.3 Women’s Employment Opportunities .............................................................................. 722.4 Representation of Women in Politics and the Judiciary .................... 743. Violence against Women in the Family .................................................................................... 743.1 Domestic Violence ................................................................................................................................... 753.2 Marital Rape ..................................................................................................................................................... 783.3 Crimes against Women Committed in the Name of Honour ......... 784. Violence against Women in the Community ........................................................................ 814.1 Rape and Other Forms of Sexual Violence ........................................................... 814.2 Sexual Harassment ................................................................................................................................... 844.3 Trafficking and Prostitution of Women .................................................................. 844.3.1 Child Trafficking, Abuse and Exploitation ............................................ 865. Violence against Women Perpetrated by the State .................................................. 875.1 Torture and Ill-treatment ........................................................................................................... 895.2 Women in Custody .................................................................................................................................... 896. Women’s Reproductive and Sexual Rights ............................................................................. 937. Conclusions and Recommendations ............................................................................................... 95Concluding observations of the Committee on Economic,Social and Cultural Rights: ArmeniaThirtieh session – 5 - 23 May 2003Consideration of Reports Submitted by States PartiesUnder Articles 16 and 17 of the Covenant ....................................................................................... 106A. Introduction ..................................................................................................................................................... 106B. Positive aspects .............................................................................................................................................. 107C. Factors and difficulties impeding the applicationof the Covenant ........................................................................................................................................... 108D. Principal Subjects of Concern ................................................................................................ 108E. Suggestions and Recommandations .................................................................................. 11165

Violence Against Women: 10 Reports / Year 200366

Brazil1. Preliminary ObservationsThe submission of alternative country information on violence againstwomen to the UN Committee on Economic, Social and Cultural Rightsforms part of the World Organisation Against Torture’s (OMCT) programmeon Violence against Women. One of the aims of the programmeis to integrate a gender perspective into the work of the five “mainstream”human rights treaty monitoring bodies. OMCT’s reports on violenceagainst women examine the effects of gender on the form that humanrights violations take, the circumstances in which these abuses occur, theconsequences of these violations and the availability and accessibility ofremedies.OMCT appreciates the fact that the report submitted by Brazil to the U.N.Committee on Economic, Social and Cultural Rights 1 underlines certaingaps in Brazilian policies and lists the legislative measures taken to remedythese problems. OMCT recognizes the efforts, mentioned in the report,that have been made during the past decade to bring the country up tointernational standards regarding the human rights of women and violenceagainst women, and the frankness with which Brazil recognizes that a lotmore needs to be done. OMCT appreciates the close partnerships establishedbetween institutional and civil society organizations to deal withcertain issues, and encourages the government to pursue these participativegovernance activities. More actions, especially in terms of informationand education of the population, are necessary for a change ofmentalities to take place regarding women’s place in society.OMCT is concerned that many measures taken at a federal level trickledown rather slowly before reaching a state level, and many measures arelost before indeed reaching their destination. Coordination between statesis needed in order to implement effective legislation. Contrasts in such awide country are to be expected, but not to their current extent, which isappalling in many cases. More homogeneity throughout the regions and agreater effort to implement laws directly into the rural areas are two mainobjectives that the government should strongly pursue.In line with the overall objectives of OMCT’s programme on Violenceagainst Women, this alternative report will focus on Brazil’s obligations inrelation to the prevention and eradication of violence against women.67

Violence Against Women: 10 Reports / Year 2003After an initial introduction on the status of women in Brazil, the reportwill examine violence against women in the family, violence againstwomen in the community and violence against women at hands of Stateagents. It also contains a chapter on violations of women’s reproductiverights. The report ends with a series of conclusions and recommendationsfor future action.1.1 Background Information on BrazilBrazil is a Constitutional Federal Republic composed of 26 states and theFederal District. The population is about 172.8 million inhabitants.Women account for roughly half of the population. The socio-demographicprofile 2 of the Brazilian woman is quite heterogeneous and varies considerablyacross regions. 3 84% of women live in urban areas, of which52% grew up in town while 32% grew up in the countryside. Of the 16%who live in the rural areas, the great majority already grew up there, andonly 3% came from the cities. Roughly one out of four women live instate capitals. Urbanization rates vary considerably from North (around70%) to South (around 90%). 4The population is racially mixed with roughly 40% of Brazilian womenhaving black and white ascendance and another 12% adding indigenousroots to both those ascendances, while 9% have white and indigenous origins.Again distribution varies across regions, with around 70% womenfrom black and mixed origins inhabiting the North and North East, 47%in the Centre West and only 34% in the South East. This rate drops evenlower in the South at 15%. 5With respect to religion, almost 70% of women in Brazil are Catholic,though only 40% declare an active practice. Evangelism is the secondmain religion with 20% of women adherents. Roughly 10% of womenprofess other religions, of which 1% is camdomblé or umbanda.Marital status is still quite important in Brazil, with 57% of women beingmarried, 36% legally and 21% informally. Only 8% of women are separatedor divorced. Maternity is equally important, with 3 out of 4 womenbeing mothers.68

Brazil1.2 Brazil’s International ObligationsBrazil acceded to the International Covenant on Economic, Social andCultural Rights on 24 January 1992. With regard to other internationalhuman rights instruments, Brazil is also State Party to the Convention onthe Elimination of All Forms of Discrimination against Women (ratifiedon 1 February 1984) as well as its Optional Protocol (ratified on 28 June2002); the International Covenant on Civil and Political Rights (accededon 24 January 1992); the Convention on the Elimination of All Forms ofRacial Discrimination (acceded on 27 March 1968); the Conventionagainst Torture and other Cruel, Inhuman or Degrading Treatment ofPunishment (ratified on 28 September 1989); and the Convention on theRights of the Child ( ratified on 24 September 1990). 6 OMCT notes withconcern that Brazil has neither signed nor ratified the Optional Protocolsto the International Covenant on Civil and Political Rights and signed, butnot ratified, the two optional Protocols to the Convention on the Rights ofthe Child on the involvement of children in armed conflict and on the saleof children, child prostitution and child pornography. Moreover, Brazilhas recognised the competence to receive and process individual complaintsof the Committee on the Elimination of Racial Discrimination butnot of the Committee against Torture.Within the inter-American human rights system, Brazil has ratified theAmerican Convention on Human Rights, which prohibits, in Article 1,discrimination on the basis of, inter alia, sex, in guaranteeing protection ofthe human rights contained in the Convention. Article 24 of the sameConvention determines the right of each person to equal protection of andbefore the law. Article 17.4 establishes the obligation of the State to “takeappropriate steps to ensure the equality of rights and the adequate balancingof responsibilities of the spouses” with respect to marriage or its dissolution.In 1995, Brazil ratified the Interamerican Convention to Prevent,Punish and Eradicate Violence against Women, established in Belém, inthe State of Pará, in 1994.The applicability of international law in Brazil is rather slow, sincetreaties which have been ratified must be approved by Congress through aLegislative Decree and then promulgated through an Executive Decree inorder to be applicable internally. This process is normally very time-consumingsince it involves the approval by both Congressional Houses.69

Violence Against Women: 10 Reports / Year 20032. General Observations on the Status of Women in Brazil2.1 Legal Status of WomenThe Brazilian Constitution 7 details in its five chapters individual and collectiverights and duties, social rights, nationality, political rights andpolitical parties. Article 5 establishes the equality of all people before thelaw, and sets forth that men and women have equal rights and obligations.It also determines the punishment by law of wrongful discrimination withrespect to individual rights and freedoms.OMCT recognizes current initiatives aiming at the modernization ofdomestic law in order to bring domestic legislation in conformity withinternational obligations. Since 2001, 44 law projects regarding violenceand human rights are transiting through the National Congress. OMCTappreciates the fact that many of these deal specifically with gender-relatedissues. In particular, four law projects address crimes against sexualfreedom, six deal with sexual crimes against minors, ten address measuresagainst discrimination, two deal with the conditions of women in detention,five regard domestic violence and six 6 deal with other violencerelatedissues.The new civil code, which has been in force since 11 January 2003,embodies the Constitutional principle of equality between men andwomen. OMCT underlines the revocation of the ancient provision whichallowed the husband to file annulment if he was not aware that his wifewas not virgin before marriage. 8The current Brazilian Civil Code introduces the concept of “family entity”to describe an informal and stable union between spouses, regardless ofhaving obtained legally married status. Therefore, the civil code abandonsthe discriminatory concept of “legitimate” marriage, becoming thus moreadjusted to the current Brazilian reality, since there has been a greatincrease in the number of informal rather than legal marriages in the pastyears, especially among persons under 45 years old. 9Prior to 1988, married women were legally subordinate to their husbandsand under the former Brazilian Civil Code, dated 1916, women were consideredperpetual wards, like minors and some elderly. 10 Divorce wasonly made legal in 1977. 1170

BrazilHowever, the provisions regarding rape under the Penal Code still severelydiscriminate against women as is dealt with in depth in section 4 of thisreport.OMCT appreciates the fact that new rights regarding women status wereconquered with the approval of more than 30 laws during the 1990s, andencourages this growing process where more than 200 law projectsregarding equal gender status have been submitted in the past few years tothe National Congress and are now awaiting approval. Nevertheless,OMCT is concerned that despite the fact Brazil ratified most internationalconventions regarding equal gender status, legislation follow-up is ratherslow. Though the legislative body is mostly in agreement with women’sdemands regarding their rights, gender status does not yet seem to havebecome a priority as far as political themes go. Even issues that havegained a relatively high level of parliamentary consensus 12 take verylong to be approved, because of lack of political will. According to a 1999survey 13 by CFEMEA, the Fourth World Conference on Women (alsoknown as the Beijing Conference) Platform for Action needs to gaingreater visibility amongst members of parliament, since 35% of thosewho answered the survey were not aware of its existence. Amongstthose who acknowledged its existence, gender differences are astounding,since 75% of women were aware of it while only 5% of men were awareof it.2.2 Women’s Educational OpportunitiesDespite the enormous progress that has been achieved over the pastdecades, there is no equal access to education in Brazil. Though manywomen now have access to education, according to a 2001 study, 14 7% ofwomen have never been to school and 60% did not even reach highschool. The dropout-rate is high, reaching 18% both at primary and earlysecondary levels. Amongst the 60% of women who never go beyond primaryeducation level, only 10% do in fact complete it. According toArticle 28 of the Convention on the Rights of the Child, States shouldmake primary education compulsory and available free to all.More discrepancies appear in high school, with only 27% of women startingthis level of education, while only 16% of these eventually achieve a71

Violence Against Women: 10 Reports / Year 2003secondary education degree. Most preoccupying is the extremely lowlevel of higher education, with only 6% of women gaining access to university,of which only 3% receive a bachelor’s degree. In the end, only 1%of Brazilian women pursue post-graduate studies. 15Though nowadays there is a considerable increase in female-headedhouseholds, these also happen to be the poorest in more than 30% of thecases. More than half of the women at the head of a household are verypoorly educated. 162.3 Women’s Employment OpportunitiesArticle 7 of the Constitution puts forward specific rights of female workers,such as maternity leave and protection of female job market. Thoughmost women can now achieve the same level of education as men, at leastin theory, and professions traditionally dominated by men are nowbecoming more balanced in terms of gender, this is still not reflectedin access to actual jobs in the field and senior positions within thecompanies.As a consequence of the de facto exclusion of women from education,women have difficulties entering the formal labour market. Thus, only17% of women are employed in the formal market, while 23% recur toinformal opportunities and 12% remain unemployed. 30% of women havean official status of housewives, though this figure climbs up to 46%when adding the students, unemployed and retired women who alsodeclare to practice this function at home.There is still a considerable wage gap between men and women, particularlypronounced in regions such as the Northeast. According to 1998 statisticsestablished by the International Confederation of IndependentUnions, women are paid, on average, 44% less than men. According tothe government’s statistics for the same year, women with a high-schooleducation earn, on average, 63% less than men with the same educationlevel. Black women earn even less, barely reaching 26% of a malesalary. 17 Reportedly, only 10 to 20% of these differences can be explainedby education or experience. For the most part, the wage gap reflects discriminatorypractices. 1872

BrazilFurthermore, the family income is still extremely low for a great majorityof women. 42% of women live with less than two minimum salaries, 19and another 34% live with less than five minimum salaries. Only 2% livewith more than 20 minimum salaries, around 1’300 USD.Women are still most commonly employed as domestic servants. OMCTnotes with concern that many domestic servants are children, who thusfail to get an education. According to the Government’s institute forApplied Economic Research, in 1998 there were approximately 800’000girls between 10 and 17 years old working as domestic servants. 20According to the ILO, 20% of girls under 14 work as domestic servants,and these figures may rise as high as 35% in rural areas. 21 More than 70%of the active women working in the formal sector are employed in the servicessector, as opposed to 42% men, and women are underrepresented inagricultural and industrial activities. 22 A study on business-women carriedout in 2000 23 points out that there are still major gender differences inattempting to gain independent status. Married women and women withchildren start their own business less often than men in the same situation,while divorced women work in their own enterprise twice as much asdivorced men. Women tend to feel the disruptions these independentactivities bring into the family organisation, especially in relation to housemaintenance, having meals at home and educating their children.With respect to entrepreneurship, age does not seem to be a major discriminatingfactor, 24 nor the degree of instruction alone. Yet crossing thisfactor with being the head of the household shows a certain increase ofsmall business enterprises amongst women who have not achieved theirprimary or secondary studies. The pressure to provide the whole familyincome encourages them to find alternative solutions to the strainedemployee status and the very low income they could possibly get in theformal labour market. These independent businesses are more often thannot small structures aimed at survival on a daily basis, not reaching abreak-even point allowing long-term growth.OMCT is concerned that only 1% of the women, and 1,5% of men, havebenefited from government measures of encouragement in setting up theirown business. OMCT strongly encourages the government to increasesuch measures in order to help future entrepreneurs create their owncompanies, while taking into account gender issues. As far as financial73

Violence Against Women: 10 Reports / Year 2003support goes, women tend to resort less to loans, and when they do, theyapply for financial help mostly from Banco do Brasil (26,3 against 16,5)and Caixa Econômica Federal (8,5 against 3,2), while men mostly obtaintheir funding from private banks (4,9 against 30,4). No one applied forfunding at Banco da Mulher, the women’s bank. This lack of demand isworrisome and shows the necessity to promote existing structuresamongst the population or else evaluate their adequacy in responding toactual needs.2.4 Representation of Women in Politics and the JudiciaryThough women have full political rights under the constitution, and havegained the right to vote since 1933, women are still widely underrepresentedin active politics, especially at the country level. The percentage ofwomen in politics and government does not correspond to their percentageamongst the population. Cultural, institutional and financial barrierscontinue to limit women’s participation in political life. The SupremeElectoral Court (TSE) reported that there were over 70,000 female candidatesfor the municipal elections nationwide in 2000. At 18.3 percent ofthe total number of candidates, this was a 40 percent increase from thelast municipal elections in 1996. In December 2000, the first woman tookher seat on the country’s highest court, the Supreme Federal Tribunal. Thefirst female senator was elected only recently, in 1991, the first electedgovernor in 1994, 25 and at that date women made up only 7% ofCongress. Ten years later the situation has not shown much improvement.In the last elections in 2002, only one woman was elected in the 1 st poll,and only 4 ran for the 2 nd poll.3. Violence against Women in the FamilyContrary to men, who are usually victims of violence by strangers in publicplaces, women are subject to violence most of all by their companionsor close relatives within the domestic sphere. Violence in Brazil is stilldeeply engrained in habits, customs and other socio-culturally inducedbehaviours.74

Brazil3.1 Domestic ViolenceThe Brazilian Constitution, in its article 226 §8, ensures State assistanceto the family and determines that mechanisms to suppress violence infamily relationships shall be created. In spite of the protection created bythe law and the engagement of the State responsibility in theConstitutional text, the rates of crimes against women have not beenreduced. Most of the cases concerning harmful physical assault againstwomen occur in the domestic environment. 26The figures of São Paulo city in 1992 registered cases of domestic violenceagainst women portray this reality: 81,5% of the registered cases ofdomestic violence correspond to harmful physical assault, 4,47% arecases of rape or attempted rape, 7,77% are cases of threats and 1,53% tosexual harassment. 27 A survey in Rio de Janeiro in 1999 regarding violencein the domestic sphere shows women have been 4 times moreaggressed than men in cases of minor physical assault and 2 times moreaggressed in cases of major physical assault.In April 2001, the Inter American Commission for Human for the firsttime ruled on a case of domestic violence against women. In the case ofMaria da Penha Maia Fernandes, who was left paraplegic as a consequenceof continuous beating by her husband, the Commission recommendedthe prosecution of the perpetrator and the compensation of thevictim. The recommendations to the government requested the “end [of]the condoning by the State of domestic violence.” 28In fact, besides the few articles applicable to domestic violence in theBrazilian Constitution and the Penal Code and related laws, there is nospecific legislation dealing with domestic violence. 29 Legislation considersdomestic violence as a minor crime (law 9.099/95) and the currentjudicial practices tend to punish perpetrators of violence against womenvery lightly. OMCT recognizes a first step has been made through approvinglegislation that speeds up the possibility of obtaining a restrainingorder. 30The overflow of violence cases in Brazilian courts has led to the creationof Special Courts in order to speed up procedures when the tried casescall for light punishment sentences not exceeding one year. Almost alldomestic violence cases are run through these Special Courts, where75

Violence Against Women: 10 Reports / Year 2003penalties are very rarely applied, and where they are applied, they remainextremely light. 31 Lack of court follow-up limits the power of police stationsin dealing effectively with domestic violence, since initial punitiveaction is usually not pursued.The special courts are not the only reason why domestic violence remainsun-addressed. Police and judiciary policies applicable against violencecases still tend to disregard the gravity of violent acts that occur withinthe domestic sphere. In cases of first or deemed minor offences, when thepenalty does not exceed one year imprisonment, the offender may receivesuspended sentences with no jail term whatsoever. 32 Women thereforetend to drop charges since there is no effective punishment at stake.Furthermore, since a fine is usually imposed rather than seclusion, womenwho still have to share the same household with their companions, forlack of alternative housing and/or financial means, end up being equallypunished by a sentence that reduces the family’s global income. Thesefinancial restrictions seriously affect women of the poorest classes whoalso happen to be frequent violence victims, and fear of this unwantedresult may lead them to withdraw the case. OMCT is concerned that overallthe present system is simply not aimed at punishing these types ofcrimes or protecting the victim. 33OMCT acknowledges the fact that the government has made substantialefforts to set up special police stations (“delegacias da mulher”) 34 toprocess cases regarding rape, other sexual crimes and domestic violenceand abuse. Indeed their numbers have risen from 125 in 1993 to 307 in1999. Yet, OMCT is concerned that these numbers should not mask thefact that less than 10% of more than 5’000 municipalities in Brazil possessthese facilities, and of those of do, 61% are situated in the Southeastand 16% in the South, while the North, the Northeast and the Central Eastare clearly underrepresented with respectively 11%, 8% and 4%.Furthermore, most of the existing special police stations are ill-equippedto respond to the needs of women victims of domestic violence. 35 Thelack of human resources, especially well-trained personnel to deal withcases of violence perpetrated against women on the one hand, and theinadequate infrastructure and non-exchange of information between theoffices on the other hand, are the main reasons of their incapacity to solvethe problem. Furthermore, the special police stations have low statusamongst the police and frequently receive old or inefficient equipment.76

BrazilServices not directly related to the police, such as therapy and social services,are not considered essential, despite having been clearly demonstratedas an important part of the help process.OMCT appreciates the fact that since these special structures have beenset up women reportedly seek help sooner and more often, and the numberof aggressions seems to have diminished. However 70% of the caseshave been filed without criminal pursuit, 36 more often than not becausethe victim herself withdraws the case, either because her companion, whois also her aggressor, promises to change, or because her socio-economicstatus makes her too dependent on him to be able to leave. More disturbingthough is the fact that the justice system contributes towards impunity:in 21% of the cases of domestic violence, the accused have been acquitted.37 Only 2% of complaints regarding domestic violence against womenlead to convictions. 38 The light penalties and the lack of follow-up andmonitoring of the aggressors’ conduct reinforces the sense of impunityregarding these crimes.Lack of adequate housing for themselves and their children is one of themain reasons that restricts women from leaving an intolerable situation ofviolence within the domestic sphere. To address this problem, the governmentcreated another special structure under the form of shelters (CasasAbrigo) that provide hospitality and protection to women victims ofdomestic violence. Though these are in high demand, questions arise as totheir effectiveness in protecting the women against their partners, especiallysince these are only temporary solutions. Women in shelter homesusually lose touch with their references: neighbours, family, work, socialgatherings. In the absence of integrated policies, the shelters fail to providethem with the economic and social bases that would substitute thesevital links and allow them to reconstruct their lives. For all of these reasons,most women are forced to go back to their previous lives, and manysituations of chronic violence evolve into fatal situations. 39 Nevertheless,the initiative of the government of Rio de Janeiro city should be recognized.In March 2001, a centre for victims of domestic violence was created,where psychological and legal assistance is provided to 130 womenper month. 40Regarding domestic violence committed against children and adolescents,though there are no national statistics, it is assumed that at least each77

Violence Against Women: 10 Reports / Year 2003minute a child is victim of domestic violence in Brazil. 41 There is anincrease in age that reaches a peak between 4 and 11 years old, this agerange accounting for 53% of the cases. Violence affects equally girls andboys and is perpetrated mainly by the mother (52), followed by the father(27%). Sexual abuse, on the other hand, which accounts for 13% of alldomestic violence, is perpetrated on girls in 80% of the cases, by a masculineaggressor in 90% of these cases. Most of the victims are extremelyyoung, ranging between 2 and 5 years old in half of the cases, followedby a remaining 33 % between 6 and 10 years old.3.2 Marital RapeMarital rape and violent sexual assaults within the home are not specificallyaddressed in Brazilian law. Such charges would have to undergo thesame procedures as general rape, though in practice such criminal procedureis almost unheard of, and the outcome might well result in muchlighter penalties since women’s complaints probably will not be takenseriously by courts. Society still largely admits a conservative viewwhereby it is a woman’s duty to submit to her husbands sexual desires.Half of the women who have reported marital rape are between the agesof 30 and 40, and 30% are between 20 and 30. In 50% of the cases, thecouple has been together for 10 to 20 years, and in 40% between 1 and 10years. After reporting marital rape to the police, 60% of the couples continuetogether. Nevertheless, it should be noted that 70% of the cases aredropped on the request of the woman who changes her views due to thepromises of her husband towards a change in the relationship.3.3 Crimes against Women Committed in the Name of HonourCrimes committed in the name of honour are not specifically addressedby Brazilian legislation and are covered in the Penal code under titlessuch as violent physical assault or murder. Intentional homicide in Brazilis set out by article 121 of the Penal Code as a crime, which may be classifiedas either simple or qualified/aggravated. When aggravated, it carriesa sentence of 12 to 30 years in prison. Reductions of up to one-half maybe obtained for first-time offenders. Most men are sent to jail for killing78

Braziltheir wives for the first time are likely to obtain this reduction and servevery little time because it is usually their first offence. Men convicted ofkilling their spouses serve an average of four years in prison.When the homicide is committed in self-defense, it is not punished inBrazil, as long as the person uses the “necessary means with moderation”to respond to “unjust aggression […] to his right or someone else’s”. 42 Inwife-murder cases, the prosecution usually claims that the murder was anintentional homicide, while the defence characterises it as an unintentionalor “privileged” homicide. In legitimate defence of honour cases, inwhich the defence seeks to obtain acquittal for the crime, the defence ofhonour is equated with legitimate self-defence. 43 However, it should benoticed that the Brazilian law does not equate a threat to a man’s honourwith the danger of a physical attack.The honour defence has deep historical roots that go back to Portuguesecolonial law. When Brazil became independent and created its own penalcode, the honour justification was not included. Defence lawyers usedinstead the argument of crime of passion and temporary insanity. The1940 Penal Code, however, specifically states that violent emotion cannotbe used to exculpate the defendant, but only as a mitigating factor reducingthe sentence of up to a third. 44 “Honour”, on the other hand, used as ifit were the equivalent of legitimate self-defence, leads in case of a successfuldefence trial to a total discharge of criminal liability. 45Despite the 1991 Supreme Federal Court ruling against an honour defencein the murder case of João Lopes, this thesis is still prevalent in Brazil,especially in the inner regions, to discharge men of their crimes againsttheir own spouses. This Supreme Court decision carries no precedentialforce, and although in general lower courts tend to follow the decisions ofthe Supreme Court, this is not so in the honour defence ruling. Becausehomicides are tried by a jury rather than a judge, in most cases social prejudicesand stereotypical attitudes towards women prevail. As a resultcourts are still reluctant to prosecute and convict men, as soon as theyclaim they have acted to defend their honour against the woman’s infidelity.In many cases, though, infidelity remains a mere suspicion and is noteven proven. Even if it were proven, infidelity would be no excuse formurdering, since the use of self-defense in that case is clearly not in proportionof the attack.79

Violence Against Women: 10 Reports / Year 2003Adultery, while still being considered as a crime by article 240 of thepenal code, only calls for a light sentence of 15 days up to six months.This charge cannot be brought if the couple is separated or divorced.In the state of Pernambuco, 70% of the 415 women killed in 1992 weremurdered by a male intimate. In 1998 the National Movement for HumanRights estimated that female murder victims were 30 times more likely tobe killed by current or former husbands and lovers than by other people. 46In a research regarding 110 honour crimes’ trials in the state of RioGrande do Norte, 47 the great majority refer to husbands and companionsnot contented with their spouses’ decision to separate, or out of jealousy.In 1995 in Upanema, a jury composed of seven women absolved a mancharged with stabbing his wife and mother of their five children to death,upon her accusation of him “not being a man.” In 1993 a husband stabbedhis wife to death because he was being “betrayed,” after 27 years of marriedlife. Sentenced to 7 years in jail in part-time imprisonment, he isunder conditional liberty since he has accomplished a third of his penalty.In another case, an accused married to the victim for five years used tobeat her until she left him. He then came to her mother’s house and shother in the head. The crime was proven to be premeditated and the accusedwas sentenced to 18 years in full-time imprisonment. After spending 4years and 2 months in jail, which corresponds to 1/6 th of the sentence, hewas allowed a part-time regime in 1995, and since 1997 he has beengranted conditional liberty.According to other relevant data provided by the research in the state ofRio Grande do Norte, 48 quite a few murders happen in retaliation towomen’s complaints at the special women police stations for being beaten.Even when the crime has been witnessed by several people the murderersare able to run away, receive permission to await trial in liberty or get shortpenalties. The relative impunity of homicidal husbands in Brazil contributesto the perception that men are able to exercise control over theirwives, particularly over their sexual freedom, as if they were their “property”,since the jury tends in quite a few cases to support this view andapprove infidelity or neglect by the women as justification for their death.80

Brazil4. Violence against Women in the Community4.1 Rape and Other Forms of Sexual ViolenceCertain provisions in the Penal Code dating from 1940 regarding rape andassault are clearly discriminatory against women and contrary to theinstruments that Brazil has undertaken in the international level. Firstlythese types of crimes are classified under the Brazilian Penal Code ascrimes against customs (articles 213 to 234) rather than against a person.Articles 213, 215, 216 and 217 deal with the crime of rape, article 214deals with sexual assault and article 218 with minor corruption. To beconsidered as a crime, rape is defined as “‘To constrain a woman to acarnal conjunction upon violence or serious menace.” Punishment forrape is imprisonment for a period of 6 up to 10 years. In accordance witharticle 5 of the Constitution, rape and violent sexual assault are consideredby law 8.072/90 as “crimes hediondos” and are therefore not subject toamnesty, bail or conditional freedom. In addition, the Penal Code increasesby one-fourth the sentences for those sexual crimes where the offenderis an ascendant, adoptive parent, stepfather, brother, tutor or healer,guardian or maintains any other type of authority over the victim.In cases of minor sexual assault, if the offended is a “mulher honesta” (anhonest woman with irreproachable moral standards) that has been constrainedto intercourse by means of fraud, than the sentence is of 1 up to 3years of imprisonment. 49 This kind of moral judgment is an open door todefence lawyers to criticise the victim’s behaviour in order to excuse ordiminish the seriousness of the aggressor’s crime. This term is clearly discriminatoryand no woman, as “dishonest” as she may be considered,should have to bear to see such a crime go unpunished because of a referenceto her moral behaviour.Brazilian law is harsher in its protection of minors from sexual violation.If the victim is a minor between 14 years of age and 18 years of ageand/or still a virgin, than the sentence is increased proportionally to 2 upto 6 years of imprisonment.The new article 163 of the Penal Code, if approved by the NationalCongress, will modify the current article 124a by extending rapepunishment to all carnal conjunction with minors under 14 years of age,81

Violence Against Women: 10 Reports / Year 2003mentally-ill women and women incapable of offering resistance, regardlessof the presence or not of any presumed violence in connectionwith the act. Imprisonment sentences will also become harsher, from 8to 12 years. OMCT is concerned that the setting of the age of consent at14 offers insufficient protection to children from sexual violence.OMCT is particularly concerned by the fact that article 107, § VII of theBrazilian Penal Code provides that in case the aggressor decides to marrythe victim, he will not face charges. This reparatory provision, perpetratesimpunity and closes the door to the Judiciary system to address the humanrights of women victims of rape. Furthermore, this provision may lead toa woman being pressured into marrying her rapist in order to preserve herfamily’s “honour.”Data on rape cases registered in 2000 50 throughout Public Security StateSecretaries shows higher rates in the North, Centre West and South andSoutheast regions with figures between 9.18 and 11.96 per 100’000inhabitants. The Northeast region, with 5.66, is the only region where thisrate is lower, the national average for Brazil being of 8.78 per 100’000inhabitants.Absolute figures show that the Southeast region accounts for nearly halfof all the rape cases in the country, with 6’632 cases out of a total of14’881. The Northeast and South regions come next with respectively2’699 and 2’619 cases, and the North and Centre West regions have thelowest figures with respectively 1’542 and 1’389 cases.OMCT is concerned that more than 40 women are still raped per day inBrazil, of which 11 are in the state of São Paulo alone. Rio Grande doSul, Rio de Janeiro and Bahia are the three other states where rape ratesexceed 1000 per year, with respectively 1392, 1261 and 1196 cases, andthough these states are more densely populated than others, percentagerates remain high, corresponding to 13.67, 8.78 and 9.15 cases per100’000 inhabitants.Conversely, low absolute figures, particularly when they regard sparselypopulated states, do not necessarily mean a low percentage of rape cases.Thus Amapá, Rondônia, the Federal District, Amazonas and Mato Grossodo Sul, to name a few states with relatively low absolute rates of less than500 cases, have the highest percentage rates in the country with respectively30.05, 25.98, 15.56, 14.54 and 13.20 per 100’000 inhabitants.82

BrazilRegarding sexual assault, figures for state capitals show an increase from1999 to 2001 for all the regions. The North presents the highest rate with114% increase, followed by the Northeast and the Center West withrespectively 77% and 54% increase. The South and the Southeast on theother hand present much lower rates with respectively 4% and 16%increase. 51 According to these same statistics, rape cases have globallydecreased in state capitals over the same period, with – 9% in the North, –14% in the Southeast and – 13% in the South. On the contrary it was on arise in the Northeast and the Center West with respectively 22% and 13%increase. 52A socio-juridical study 53 of rape data between 1985 and 1994 has collected50 judicial cases and 101 jurisprudence illustrations from all over thecountry, and establishes the following profiles for rape crimes: Womenand female children are the main victims of rape. Convicted rapists areusually young men under 30 years old of low social status. The socio-economicaland ethnic profile of the victim coincides in most cases with thatof the assailant. The victim and aggressor usually knew each other prior tothe crime, being parents, friends, neighbours or acquaintances. The majorityof the victims were minors and virgins, many of them being repeatedlyviolated by their own father or stepfather. Psychological intimidation andgreater physical strength were in most cases the only weapons men usedto constrain women.Judicial procedures in Brazil remain rather slow. Though most cases lastedfor 3 years, other cases had lengthy trials, some lasting for more than 8years. Prejudice and discrimination against women interfere in judicialpractices, in particular the demand that women conform to certain moralstandards. Moral judgment of the victim’s behaviour intervene against anobjective analysis of the facts, and judges, lawyers and police alike usuallydo nothing to prevent this discrimination, and sometimes even activelydisqualify the victim’s behaviour and dignity.In 1998, the São Paulo Center for Assistance to Female Victims of SexualViolence reported that 400 women sought their intervention in rape casesafter receiving no help from the police. In 2000, there were more than8’000 complaints of violence against women filed with the policeDelegate to the protection of women, an increase of 40% over 1999. 5483

Violence Against Women: 10 Reports / Year 20034.2 Sexual HarassmentThe Beijing Conference platform of action, which Brazil signed, definesfear of violence, including sexual harassment, as a permanent constraintthat limits women mobility and access to activities and resources essentialto their welfare. Therefore the platform recommends that governmentsset up and enforce a legal framework to eliminate sexual harassmentand discrimination against women in their working place. OMCT ispleased that Brazil has complied recently with this demand, since a billoutlawing sexual harassment was just passed in 2001. Law 10.224/01,added to the penal Code under article 216a, 55 sets detention sentences ofup to two years for cases in which a person uses his or her hierarchicalsuperiority to gain sexual advantage over another. Detention though doesnot mean reclusion. Penalties therefore can be applied in a semi-open oran open system or even be commuted to alternative community servicesentences.The Brazilian bill embodies the provision of the CEDAW, ensuring theequality between man and women and the elimination of the discriminationagainst women in the exercise of their civil, political, economical,social and cultural rights. OMCT praises the substantial progress broughtby this law in considering sexual harassment at the workplace as a crime.Nevertheless, the law remains very difficult to implement in practice,mainly because most people are still not aware of the implications of thischange of legislation for their rights. The victims suffer extreme pressureto remain silent in order not to lose their jobs. OMCT encourages the governmentto take measures to publicize this bill and make people moreaware of their rights regarding sexual harassment. Furthermore, the governmentshould take measures to protect victims of sexual harassmentfrom being fired after filing a complaint.4.3 Trafficking and Prostitution of WomenThe majority of Brazilian trafficking victims are women and girls who aretrafficked for the purpose of sexual exploitation to Europe, Japan, Israel,and the United States. 56 An estimated 75’000 women from Brazil 57 workabroad in the sex industry, though it is not clear how many of thesewomen are victims of trafficking.84

BrazilFrom 1990 to 1995, 100 women were trafficked for prostitution fromremote villages in Brazil to London, where they were held under debtbondage. 58 In 2000, the federal police arrested a person connected to atrafficking ring that brought women from the state of Goiás to Spain. Fourwomen were with the suspect at the time of arrest. Following this eventthe police unmasked a travel agency in Goiás which had recruited andsent at least 20 women to Spain to work as prostitutes. The two agencyowners are now in prison awaiting trial, but the recruiters have not beencaught.Trafficked women suffer human rights violations as they are denied theright to liberty, the right not to be held in slavery or involuntary servitudeand the right to be free from violence. The right to health 59 is also at stakeas involvement in the sex industry is a risk factor for sexually transmittedinfections and HIV/AIDS. Unwanted pregnancies may result in furtherrisks being taken with illegal abortions in harsh conditions, since thesewomen have no access to health care. According to victims’ testimoniestraffickers exercise control by restricting the victims’ movements andrecurring to violence as a means of intimidation and punishment, whilephysical assault and rape are commonly used to initiate women into thesex industry. 60OMCT is concerned with the lack of anti-trafficking legislation in Brazil.Apart from article 231 (on the international trafficking of women for prostitution)and articles 227, 228, 229 (on the exploitation of the prostitutionof women) in the Brazilian Penal Code, there is no specific legislationconcerning trafficking in individuals. Thus, the penal law limits the traffickingof persons to the sexual exploitation of women and prostitution,leaving aside, for instance, the trafficking of children. In fact, it was legallydealt with after the entering into force of the statute on children andadolescents (ECA), in 1990 (article 244-A concerns the submission ofchildren to sexual exploitation and prostitution).Though penalties for trafficking in persons include fines and prison sentencesranging from 1 to 12 years, in practice traffickers are seldomcaught, because they must be caught in the act of travelling with the victims,and the fear of reprisals keeps women from seeking police interventionor from testifying against their persecutors.85

Violence Against Women: 10 Reports / Year 20034.3.1 Child Trafficking, Abuse and ExploitationTo call attention to the issue of Sexual Exploitation of children, the governmentdeclared a National Day against the Sexual Exploitation ofChildren and Adolescents and took measures to launch the first nationalpilot program to combat child prostitution.The statute on children and adolescents (ECA), dating from 1990, devotesseveral articles to fight child abuse and exploitation, namely article 82 thatprohibits hosting children or adolescents in hotels except when accompaniedby their parents or an adult responsible for them, and article 250 thatinstalls a fine of up to the equivalent of 20 minimum salaries and a 15-dayclosure for those who infringe the law. Articles 240 and 241 do not allowfilming, photographing nor publishing any sort of sexual or pornographicscene involving children or adolescents. Law 8.069/90 changes the statusof children and adolescents.Despite the laws rendering these activities illegal, child abuse andexploitation in Brazil has continued to expand over the past few years. InBrazil, an estimated 1 million children are believed to enter the sex marketeach year. 61 According to CECRIA (Centro de Referências, Estudos eAções sobre Crianças e Adolescentes), there are an estimated 500’000 girlprostitutes throughout Brazil, many of these trafficked internally. 62 Therange of illicit activities varies widely across Brazil. According toBrazilian Center for Childhood and Adolescents (CBIA), a major destinationare the gold mining regions in the Amazon. Data as of 1999 pointsout that in the North miners in particular (“garimpos”) are responsible fora substantial amount of violent sexual exploitation including keeping thechildren captive, mutilations, selling and trafficking, especially at the borders.This is particularly worrisome since government programs toaddress the situation have great difficulties in penetrating these remoteareas. For instance, the International Labour Organization reported thatobservers have cited over 3’000 girls who were subject to debt servitudeand forced into prostitution in the state of Rôndonia. Girls brought to themines are reportedly auctioned for as much as 4’000 USD each. In 1999,150 child prostitutes were found in the Araras mine. 63According to ECPAT International, Brazil is a favoured destination forpedophile sex tourists from Europe and the United States. 64 In theNortheast coastal regions sex tourism prevails through an organised crime86

Brazilnetwork including travel agencies, taxi drivers and hotels. While researchingsex tourism in this region NGO O CHAME has discovered connectionsbetween traffickers and sex tours organizers. 65 A recentphenomenon in these regions consists in delocalising child prostitutionfrom the coast to the “Sertão,” which makes it even harder to control. Inthe south, exploitation of street children is most frequent. Child traffickingconnected with drug trafficking is also quite common. In the Southeastsexual tourism and private prostitution houses where children are secludedare both on the rise.5. Violence against Women by the StateBrazil made only limited progress in dealing with problems such as policebrutality, and inhumane prison conditions. A recent positive step has beenthe passage of a renewed National Human Rights Program to fight againstdiscrimination and protect the rights of minority groups, including blacks,indigenous people, lesbians and gay men, and the elderly. However,OMCT is concerned that not much progress has been achieved in practicesince its first implementation in 1996. Another positive step was theopening of police archives containing information on abuses committedduring the 1964-1985 dictatorship, though these can only be consultedby families and a special commission in charge of examining those abuses.66The Special Rapporteur on Torture concluded in its report on his visit toBrazil that training and professionalism of police and other personnelresponsible for custody are often inadequate, sometimes to the point ofnon-existence. A culture of brutality and, often, corruption iswidespread. 67 The few rich suspects, if deprived of liberty at all or evenconvicted, can purchase tolerable or at least less intolerable treatment andconditions of detention than the many who are poor and usually black ormulatto or, in rural areas, indigenous. 68He concluded further that torture and similar ill-treatment are metedout on a widespread and systematic basis in most of the parts of the country.He found evidence of torture and ill treatment at all phases of detention:arrest, preliminary detention, other provisional detention, and inpenitentiaries and institutions for juvenile offenders. It does not happen to87

Violence Against Women: 10 Reports / Year 2003all or everywhere; mainly it happens to poor, black common criminalsinvolved in petty crimes or small-scale drug distribution. And it happensin the police stations and custodial institutions through which these typesof offenders pass. The Special Rapporteur stated that the purposes rangefrom obtaining of information and confessions to the lubrication of systemsof financial extortion. 69Despite widespread police abuses, only four of Brazil’s twenty-six states(São Paulo, Pará, Minas Gerais, and Rio de Janeiro), and the FederalDistrict, have a police ombudsman’s office to respond to complaints ofpolice brutality. In 2000, the São Paulo police ombudsman received 481complaints alleging torture, abuse, mistreatment or neglect, and believesmany more cases are not reported. 70 There is widespread corruption andviolence among police forces, reinforced by harsh work conditions suchas low wages, poor training and inadequate equipment.OMCT notes that Brazilian law prohibits arbitrary arrest and detention.Although the government generally observes this prohibition, police continuesat times to arrest and detain persons arbitrarily. The Constitutionlimits arrests to those caught in the act of committing a crime or thosearrested by order of a judicial authority. Though the authorities generallyrespect the Constitutional provision for a judicial determination of thelegality of detention, many convicted inmates are detained beyond theirsentences due to poor record keeping. The law permits provisionaldetention for up to 5 days under specific conditions during a police investigation,but a judge may extend this period. However, groups that workwith street children claim that the police sometimes detain street youthsillegally without a judicial order or hold their suspects incommunicado.Defendants in criminal cases arrested in the act of committing a crimemust be charged within 30 days of their arrest, depending on the crime.Other defendants must be charged within 45 days, although this period canbe extended. Defendants for all but the most serious crimes have the rightto a bail hearing. Human rights monitors alleged that civil and uniformedpolice regularly detain persons illegally to extort money or other favours.Violence, torture and exactions against rural workers remain widespreadand sometimes involve police participation. According to the PastoralLand Commission (Comissão Pastoral da Terra, CPT) a total of 1,548rural workers were killed in land disputes in Brazil from 1988 to August88

Brazil2002. In 2002 alone, at least sixteen rural laborers were murdered in landconflicts and seventy-three people received death threats. Cases of ruralviolence, including killings, were rarely prosecuted, and criminal prosecutionsrarely ended in convictions, mainly because local interests at stakeexercise too much pressure on local courts.5.1 Torture and Ill-treatmentTorture is considered a crime by law 9455/97. Assimilated to other“crimes hediondos,” 71 punishment of torture consists therefore of 3 up to6 year-imprisonment, not subject to amnesty, bail or conditional freedom.State Police are divided into two forces: (a) the civil police, who has aninvestigative role and the (b) uniformed police, know officially as the“military police,” both responsible for the maintaining of public order.One of the main characteristics of the uniformed police is the fact ofhaving a separate judicial system.The lack of accountability and the inefficiency of the criminal justice systemare major problems. 72 Some examples are stated below:In October 2000, the authorities arrested two civil guards in São Pauloand accused them of the sexual assault of three teenage girls caughttrespassing in a cemetery. Police authorities began an internal investigationinto the matter, but no further information was available on the statusof the case. 73A prominent case of torture was reported in Rio de Janeiro in January2001, where two women were taken into custody by private securityguards after allegedly shoplifting sunblock lotion from a department storeof the Carrefour chain. Instead of turning the women over the police, thesecurity guards called in local drug traffickers who beat the women.Police have charged three Carrefour employees and four alleged gangmembers in the case.5.2 Women in CustodyWith respect to criminal legislation, several remedies for the defense ofthreatened rights are foreseen by law, as follows: (a) habeas corpus; (b)89

Violence Against Women: 10 Reports / Year 2003habeas data; (c) writ of mandamus; (d) collective writ of mandamus; (e)writ of injunction; (f) popular action and (g) public civil action. Womenfacing charges have the right to be represented by a lawyer and have fullaccess to these remedies.The Brazilian Constitution contains explicit guarantees for the protectionof the inmate population. 74 Certain State Constitutions have similar provisions.The Constitution of the State of São Paulo provides, for example,that “state prison legislation will guarantee respect for the United NationsStandard Minimum Rules for the Treatment of Prisoners [and] the [rightto] defence in cases of disciplinary infractions.” 75The most detailed statement of Brazil’s prison rules – or at least of itsaspirations for the prison system-can be found in the Law of theExecution of Sentences (Lei de Execução Penal, hereinafter the “nationalprison law”). Adopted in 1984, the national prison law evidences respectfor prisoners’ human rights and contains numerous provisions mandatingindividualized treatment, protecting inmates’ substantive and proceduralrights, and guaranteeing them medical, legal, educational, social, religiousand material assistance. Viewed as a whole, the focus of the law is notpunishment but instead the “resocialization of the convicted person.”Besides its concern for humanizing the prison system, it also invitesjudges to rely on alternative sanctions to prisons such as fines, communityservice, and suspended sentences.The Minimum Rules of the Treatment of Prisoners in Brazil (RegrasMínimas para o Tratamento do Preso no Brasil), which dates from1994, 76 consists of sixty-five articles largely modelled after the U.N.Standard Minimum Rules, the rules cover such topics as classification,food, medical care, discipline, prisoners’ contact with the outside world,education, work, and voting rights.Despite the recent progress within the legislation, in reality, the country’spenal system lacks the physical infrastructure needed to ensure compliancewith the law. The living conditions of many of Brazil’s penitentiaries,jails, and police lockups remain inhumane, and violence againstprisoners is widespread. A central problem remains the overcrowding ofBrazil’s prisons, especially in the states of São Paulo, Rio de Janeiro,Bahia, Rio Grande do Sul, and Pernambuco. According to official figures,as of April 2002, Brazil’s 903 penal institutions housed 235,000 inmates,90

Brazilwell above the system’s capacity of 170,000. Of these, 8,510 are femaleinmates, constituting about 4% of the inmate population. The lack ofspace, combined with an underfunded and understaffed penal system, ledto frequent prison riots and other outbreaks of violence. 77 More than32’000 prisoners, most of them already convicted, remain in temporaryholding facilities in police stations.A positive step was taken in September 2002, when São Paulo stateauthorities shut down the largest prison in Latin America, the Casa deDetenção, in the Carandirú prison complex. Prisoners have been transferredto smaller and more modern penitentiaries in the state’s interior.However, many prisoners complain about the transfer because they can nolonger receive visits from family as it is too far away from their homes.Women’s facilities in São Paulo’s penitentiary system are even more overcrowdedthan those for men. Certain facilities are said to hold more than500 inmates above the capacity limit and the state’s expansion programfor Brazilian penitentiaries does not envisage the building of new femalefacilities.Women in custody in Brazil are also reportedly subjected to ill-treatmentin some facilities. For instance in April 2001, civil police were called toput down a rebellion that occurred in São Paulo city. A representative of ahuman rights organisation claimed to have seen women with severe headinjuries. Police reportedly have beaten pregnant inmates and there hasbeen no investigation against the responsible officers. 78Consistent with international rules, Brazil’s national prison law stipulatesthat women prisoners must be supervised by women guards. 79 In practice,some women’s prisons employ both male and female guards, althoughthey normally impose restrictions on which areas of the facility maleguards can enter, so that men do not venture into the more private areas.Women prisoners in several facilities report, nonetheless, that male guardsoften enter these areas, what may lead to sexual abuse and extortion ofsexual favors. In the States of São Paulo and Rio de Janeiro, for instance,prisons destined for the holding of females are served by male officers.Women in João Pessoa Women’s Penitentiary also complained about verbalabuse, particularly from the male guards. Similar complaints of verbalabuse were voiced at the São Paulo Women’s Penitentiary, where womeninmates said that male guards occasionally refer to them as “prostitutes.”91

Violence Against Women: 10 Reports / Year 2003At the Manaus prison, women stated that male guards had enteredseveral times to verbally and physically abuse a mentally ill woman prisoner.80Another reported problem is the lack of gender segregation within thesame detention facilities. In Rio de Janeiro state, for instance, there areonly two police districts in which women in lockup are held in gendersegregatedshort-term jail facilities.Women in custody have limited recreational facilities with respect to menand face discrimination in conjugal visiting rights. Unlike the men’s prisons,most women’s prisons do not have very large exercise areas. Many ofthem include only small paved patios, allowing women inmates almost nospace to exercise. In Brazil intimate visits of women in custody are notseen as a right 81 but as a benefit. Only two prisons allow these visits, onein Porto Alegre, in the state of Rio Grande do Sul, and the other in SãoPaulo. In the one located in Porto Alegre the anachronism on the regulationof male and female intimate visits is made very clear: female intimatevisits are allowed only to partners with legal married status and only twicea month, 82 while male intimate visits are allowed 8 times a month withoutthe requirement of marriage.Equally, most prisons do not observe the Law of Criminal Executionsregarding the obligation of creating kindergartens for children under 6years old if they are to remain without care 83 following their mothers’detention. This situation is made worse by the fact that the vast majorityof women in prison are mothers and heads of their household.Despite the fact that women prisoners usually have more medical needsthan men prisoners, medical care is often extremely deficient in penalfacilities for women. 84 HIV/AIDS is a serious threat to the healthof women prisoners: indeed, studies indicate that the disease strikes aneven higher percentage of incarcerated women than men. Twenty percentof the women prisoners tested for the AIDS virus at the Women’sPenitentiary in São Paulo were found to be HIV-positive. Medical staffat the Women’s Penitentiary in Porto Alegre, Rio Grande do Sul, saidthat they believed at least 10 percent of inmates at that facility to be HIVpositive.92

Brazil6. Women’s Reproductive and Sexual Rights 85OMCT recalls that the Committee on Economic Social and CulturalRights adopted General Comment 14 on the right to the highest attainablestandard of health at its 22 nd Session, in 2000. 86 With regard to gender,“the Committee recommends that States integrate a gender perspective intheir health-related policies, planning programmes and research in orderto promote better health for both women and men.” With regard to womenand the right to health, the Committee notes in paragraph 21 that “to eliminatediscrimination against women, there is a need to develop and implementa comprehensive national strategy for promoting women’s right tohealth throughout their life span.” The same paragraph states: “A majorgoal should be reducing women’s health risks, particularly lowering ratesof maternal mortality and protecting women from domestic violence.”Moreover, the Committee stresses that “it is also important to undertakepreventive, promotive and remedial action to shield women from theimpact of harmful traditional cultural practices and norms that deny themtheir full reproductive rights.”Despite the continuous demand of women’s organisations and health careprofessionals’ coalitions to legalize pregnancy interruption, abortion stillremains illegal except under severe circumstances, such as when themother’s life is threatened or in case of rape, as stated in article 128 of thePenal Code, introduced by law 2848 in 1940. There exists a law projecton abortion, still to be approved by the National Congress, PL 1135/91and annexes, which would modify articles 124, 125 and 126 of the PenalCode dating from 1940 that consider abortion caused by the mother orwith her consent as a crime. 87In the wake of the first program of legal abortion initiated in 1989 by theWoman’s health Assessor (Assessoria da Saúde da Mulher) in a publichospital through the approval of the Sao Paulo municipal law 692/89, 88and following the increasing demand of women for these services in otherareas, the Ministry of Health published in 1999 the first edition of theTechnical Standard regarding the prevention and treatment of the illresulting from sexual violence, which guarantees abortion services in thetwo cases legally admitted in the Penal Code offered by the Single HealthCare System (SUS). 89 It took a resolution of the ConstitutionalCommittee for Justice, barely obtained by 24 votes against 23 in 1997, to93

Violence Against Women: 10 Reports / Year 2003implement this measure. The decision also encountered much criticismfrom opponent pro life and religious groups in the civil society, and evenamongst health professionals, despite the appalling figures of illegal abortioncases and the very high rates of post medical treatment needed topatch up sequels due to interventions made in poor conditions, factswhich underline the necessity of such a measure.In 1999, abortion in the cases of sexual violence was, though allowed inthe law, possible only in 8 public hospitals in Brazil. 90 The technicalguidelines set forth by the Ministry of Health for the prevention and treatmentof victims of sexual violence bring relevant changes since providing,among other issues, for the legal and medical procedures required for theperformance of an abortion in all Brazilian public health establishments inthe cases stated in the law. 91 Though the guidelines are not mandatory,since their publication, 48 hospitals part of the Single Health Care System(SUS) have adopted them and offer such interventions to women victimsof sexual violence. 92Illegal abortions in Brazil are estimated at around a million per year,based on an estimate extrapolated from the Single Health Care System(SUS) interventions. 93 Among the factors leading to illegal abortion arepoverty, exclusion, inequity, undesired pregnancy, unsafe sex practicesand gender inequality.Abortion is the fifth main cause for turning to public health services andthe third cause of maternal death in the country. Eighty-five percent theSingle Health Care System (SUS) interventions are related to aggravationsdue to clandestine abortions. In 2000, there were more than 247’000cases of women accessing SUS services for abortion-related issues, ofwhich 67 resulted in death. 94To address this particularly acute situation, as of 2001, there were already27 public hospitals applying the Technical Standard and offering freeabortion services in cases responding to the legal requirements. OMCTnotes that the implementation of the Technical Standard has been quitesuccessful but stresses the fact that these numbers are clearly not enough,especially since the existing services are not evenly distributed throughoutand within the regions. Northern regions in particular, being the mostdeprived of health care equipment, show the highest rates of abortion.94

BrazilA survey on legal abortion in Brasilia 95 points out that services providedby the Medical legal institute of the Federal District to women victims ofrape only deal with the criminal part of the problem, leaving the socialand psychological issues aside. While women victims of rape are in needof an effective and humane health service, they encounter a lack of speciallytrained professionals and prejudice-tainted attendance. Most interviewedwomen did not receive orientation regarding their rights on legalabortion or AIDS prevention and treatment.The fecundity rate in Brazil remains quite high at 2.3 children perwoman. 96 Furthermore, this average is not highly representative sincefecundity rates vary considerably according to the women’s level of educationand across regions. 97 As recently as 1998, 98 a surprisingly highnumber (38,4%) of women gave birth to their first child when they wereunder 19 years old. In the North, this figures overpasses 51%, while in theNortheast and Center West values attain respectively 41.7% and 43.2%. In1998 almost one out of every four mothers had not yet reached her 20 thbirthday, 99 and this figure has been on the rise since 1994, when that agegroup concerned one out of every five mothers. 100 More alarming is thefact that almost 2% of women become mothers when they are between 10and 14 years old. This figure rises to 3.4% in the North, 2.3% in theNortheast and 2.4% in the Center West.7. Conclusions and RecommendationsBrazil has, in recent years, introduced several initiatives aimed at promotingand protecting the human rights of women. The new Civil Code of2003 embodies in full the Constitutional principle of equality betweenwomen and men. However, violence and other forms of discriminationagainst women remain problems in the country. Women continue to faceinequality in many aspects of their lives such as high levels of unemployment,unequal representation in government, unequal educational opportunitiesas well as discrimination in the family sphere.OMCT is deeply concerned by the prevalence of domestic violence inBrazil. In spite of the fact that domestic violence is a punishable act,domestic violence against women has not been reduced. As well as constitutinga violation of articles 3, 10 and 11 of the ICESCR, the high rates95

Violence Against Women: 10 Reports / Year 2003of domestic violence in Brazil are directly linked to failures to adequatelyguarantee the rights contained in articles 6 and 7 of the Covenant. Womensuffer from higher levels of unemployment than men in Brazil and whenthey are employed, they frequently work in precarious and less well remuneratedjobs, which makes them more economically dependent on theirmale partners and therefore unable to leave violent relationships. In addition,the shortage of adequate housing including emergency shelters forvictims of domestic violence has created a situation whereby women whoare victims of domestic violence often have little choice than to continueco-habitating with the perpetrators of this violence. Moreover, when thewomen report the violence, the police and the judiciary do not take thecrime seriously. Reportedly, only 2% of complaints relating to domesticviolence lead to convictions, and when convicted, the penalties are verylight. As a result, there is a sense of impunity of these crimes in Brazil.OMCT believes that more effective legislative and policy measures needto be taken in order to address the issue of domestic violence in Brazil.Moreover, the Penal Code should be amended to explicitly criminalizerape in the context of marriage and consideration should be given to thedrafting of additional, comprehensive legislation for the prevention anderadication of domestic violence. These measures should be based on theguidelines proposed by the Special Rapporteur on Violence AgainstWomen (U.N. doc. E/CN/.4/1996/53, Add.2) and should include thedevelopment of quasi-judicial remedies such as restraining and protectiveorders as well as the allocation of increased resources for the housing andreintegration of women who have been victims of domestic violence. Inaddition, a systematic training and awareness-raising programme for alllaw enforcement officials and members of the judiciary in relation to theinvestigation, prosecution and punishment of domestic violence should bedeveloped. OMCT would also like to emphasise the need to provide legalaid to women wishing to pursue complaints. OMCT urges the Braziliangovernment to extend the number of women police stations, theDelegacias da mulher, in order to make them available to women in allparts of the country.OMCT is gravely concerned about crimes committed against women inthe name of “honour” in Brazil. Perpetrators of crimes against womencommitted in the name of “honour” – in most cases (ex) husbands or (ex)boyfriends who suspect their (ex) wife or (ex) girl friend of infidelity,96

Braziloften receive reduced sentences. The defence of “honour” is equated withlegitimate self-defence.Trafficking in girls and women remains a serious problem in Brazil andOMCT would urge the government to make a binding commitment to preventingand combating trafficking by ratifying the Protocol to Prevent,Suppress and Punish Trafficking in Persons, Especially Women andChildren Supplementing the UN Convention against TransnationalOrganized Crime. OMCT would also urge the government to considerusing the Recommended Principles and Guidelines on Human Rights andHuman Trafficking (UN Doc. E/2002/68/Add.1) as adopted by theEconomic and Social Council in July 2002 as the basis for the developmentof a comprehensive legislative and policy response to the issue.In relation to the prevention of trafficking, OMCT would recommend thatthe government make further efforts to address some of the root causes oftrafficking through, inter alia, ensuring that women’s economic, socialand cultural rights are protected and respected in practice. To this end,effective measures to prevent and eradicate discrimination against womenin employment, to facilitate access to affordable housing and to preventand combat gender-related violence need to be adopted.OMCT would recommend that the government give serious considerationto the adoption of comprehensive anti-trafficking legislation that enshrinesthe rights of trafficking victims to appropriate protection and assistance.OMCT notes with concern that the Penal Code still discriminates severelyagainst women, particularly in relation to rape. Article 107, para. VII ofthe Brazilian the Penal Code stipulates that a man who rapes a womanwill be exempt from punishment if he offers to marry her (“reparatorymarriage”) and article 215 of the Brazilian Penal Code contains the criteriafor punishment of a minor sexual assault that the victim is an “honest”woman. OMCT would urge the government of Brazil to repeal these discriminatoryprovisions as soon as possible.The moral judgements towards victims of sexual violence by membersof the police and the judiciary have lead to a lack of confidence in thelaw enforcement response to acts of violence against women and thus tothe subsequent under-reporting of rape and other forms of violenceagainst women in Brazil. For this reason, OMCT would recommend that97

Violence Against Women: 10 Reports / Year 2003all references to “honest” women are repealed from the legislation andthat all law enforcement personnel and members of the judiciary be givenappropriate gender-sensitive training in responding to cases of rape andother forms of violence against women. OMCT would further recommendthat greater numbers of female police officers be recruited and that theseofficers be, as a priority, assigned to specialised units created to respondto cases of violence against women.OMCT is concerned about the situation of women in custody. There arereports of women inmates being abused by the prison officers who aresupposedly responsible for their custody. A particular problem is the overcrowdingof prisons in Brazil and the fact that women are not alwaysguarded by women. OMCT would recommend that the government toensure that immediate action is taken to guarantee that the prison conditionsmeet minimum international standards as laid down in the UnitedNations Standard Minimum Rules for the Treatment of Prisoners, theBody of Principles for the Protection of All Persons under Any Form ofDetention or Imprisonment, the Principles on the Effective Prevention andInvestigation of Extra-Legal, Arbitrary and Summary Executions, and theBasic Principles for the Treatment of Prisoners. In addition and in linewith international standards on detention, OMCT would recommend thatdetained women are only supervised by female prison staff and that alldetainees are granted access to effective and confidential complaintsmechanisms.OMCT is concerned about the high mortality rate during illegal abortions.Particularly in the northern regions, where women are the most deprivedof health care equipment, rates of abortion are very high. OMCT urges thegovernment to implement the Technical Standard throughout the country.OMCT believes that all persons should have the right to decide freely andresponsibly about the number, spacing and timing of their children and tohave the information and means to do so, and the right to attain the higheststandard of sexual and reproductive health. This also includes the rightto make decisions concerning reproduction free of discrimination, coercionand violence. OMCT would recommend the elaboration of adequatefamily-planning programmes.Finally, OMCT would insist on the need to fully implement all provisionsof the Convention on the Elimination of Discrimination against Women,98

Brazilthe Declaration on the Elimination of Violence against Women as well asthe Beijing Platform of Action, in Brazil as these are the most relevantinternational instruments concerned with all forms of violence againstwomen.1 U.N. Doc. E/1990/5/Add53.2 The information gathered under this chapter was taken from the research ofFundação Perseu Abramo, “A mulher brasileira nos espaços público e privado”(The Brazilian woman in public and private space), available athttp://www.fpabramo.org.br/nop/mulheres/perfil.htm, (consulted December 16,2002).3 Brazil is divided into 5 regions: North, North-east, South, South-East, and Center-West, hereafter CW. Statistical results tend to vary widely across these regions,therefore Brazilian averages should be considered with caution.4 IBGE and Seade foundations, values taken from the 2000 demographic census,available athttp://www.mj.gov.br/sedh/cndm/genero/demografia/RG_pop003.htm, (consultedDecember 1, 2002).5 Ibid.6 Furthermore, Brazil is Party to, inter alia, the International Convention for theSuppression of The Traffic in women of Full Age (1933), and the InternationalConvention on the Suppression of the Traffic in Women and Children (1921), asamended by the Protocol signed in Lake Success (1947); Convention for theSuppression of the Traffic in Persons and of the Exploitation of the Prostitution ofOthers, and Final Protocol (1950) and the Convention on the Political Rights ofWomen (1953).7 Adopted on 5 October 1988.99

Violence Against Women: 10 Reports / Year 20038 Article 219 IV.9 Though the number of legal marriages has continued to slightly increase, from36.8% in 1991 to 40.2% in 1995, the number of informal marriages has equallyincreased, from 11.4% in 1991 to 15.5 % in 1995, though the rates soar above20% for the 20 to 35 years old. IBGE and Seade foundations, values taken fromthe 1991 Demographic Census, Ibid.; PNAD 1995 – Pesquisa National porAmostra de Domicílios, available at http://www.mj.gov.br/sedh/cndm/genero/demografia/RG_car004_1995.htm, (consulted December 1, 2002).10 Articles 241and 242.11 Jone Johnson Lewis, Brazil – Women, available athttp://www.womenshistory.about.com/library/ency/blwh_brazil.htm, (consultedNovember 25, 2002).12 Consensual issues include sexual violence, with 95% of parliament members infavour of legislation binding the public health system into offering free physicaland psychological care services to women victims of sexual violence and coveringabortion throughout the country in all the cases accepted by law. 91% of parliamentmembers are in favour of legislation aiming at including sexual educationcourses in schools, 87% of parliament members are in favour of giving protectionto women in the job market, and 76% of parliament members are in favour of consideringsexual harassment as a crime requiring fine and detention. Abortion legislationis still widely considered as controversial with only roughly one out of twoparliament members in favour of extending abortion possibilities.13 Almira Rodrigues, Legislativo Federal e os Direitos das Mulheres: não falta sensibilidadee sim vontade política, Jornal da Rede Feminista de Saúde - nº 21 -Setembro 2000, available at http://www.redesaude.org.br/jornal/html/body_jr21-almira.html, (consulted December 16, 2002).14 Fundação Perseu Abramo, “A mulher brasileira nos espaços público e privado”(The Brazilian woman in public and private space),http://www.fpabramo.org.br/nop/mulheres/perfil.htm, consulted 16.12.02.15 Ibid.16 Of a total of 55%, 20% have received no education and 35% received onlybetween 1 year and 4 years of education, corresponding to primary school.Compared to the national mean at 20%, SE and South drop to less than 15% foruneducated women, while the NE bursts out at 32%. Instituto Brasileiro deGeografia e Estatísca, Distribuição percentual de mulheres de 10 anos ou mais deidade, responsáveis pelos domicílios, por classes de anos de estudo, segundo asGrandes Regiões, available at http://www1.ibge.gov.br/home/estatistica/populacao/perfildamulher/tabela/072000(consulted December 16, 2002).17 U.S. Dep’t of State, Human Rights Report 2001 (2002), Brazil, available athttp://www.state.gov/g/drl/rls/hrrpt/2001/wha/8305.htm.18 Jone Johnson Lewis, Ibid.19 In April 2003, the minimum salary in Brazil is of 200 reais per month, correspondingapproximately to 65 dollars per month.20 U.S. Department of State, Ibid.21 ILO-IPEC, (1999), Mainstreaming Gender in IPEC Activities.22 Jone Johnson Lewis, Ibid.100

Brazil23 This was the second study SEBRAE (Serviço Brasileiro de Apoio às Micro ePequenas Empresas) dedicated to women who have founded their own business. Asample of 1000 small companies equally headed by male and female entrepreneurshas been compared. SEBRAE/UED, II Sondagem Sebrae 2000 “A MulherEmpresária.”24 The great majority for both sexes is between 30 and 50 years old and most agegroups show the same results regardless of gender, except the percentage ofwomen between 30 and 40 years which is significantly higher than that of men(38,5 against 30,7), while that of women above 50 years old is significantly lower(13,4 against 20,9). This could show a trend of change favourable to entrepreneurshipamongst the younger generations, and OMCT hopes this trend will be reinforcedby policies of encouragement addressed to young women.25 Jone Johnson Lewis, Ibid.26 Domestic violence, occurring between intimate partners, accounts for 65% to 80%of reported cases of violence against women. In Brazil, around a third of hospitalemergencies are related with domestic violence. A Polícia , o Judiciário, asMulheres, a Violência, available at http://www.redesaude.org.br/html/body_viol-02-5.html, (consulted December 16, 2002).27 Domestic violence survey taking into account data from the special women policestations. Profiles regarding the couples involved show that many women subject toviolence are quite young, with more than 30% between 20 and 30 years old andmore than half between 30 and 40 years old. One in every two couples have livedtogether for more than ten years, and after the complaint 60% of the couplesremain together. This situation calls for reconsidering the kind of interventionmost suitable to address violence situations which are very likely bound to reoccurwhen there is no adequate follow-up with the couple. For more details, seewww.redesaude.org.br.28 Inter American Commission for Human Rights, case n. 12.051, Maria da PenhaMaia Fernandes and Brasil, available at http://www.cidh.oas.org/annualrep/2000sp/capituloiii/fondo/brasil12.051.htm., (consulted December 16, 2002).29 Law 10.455/02, Universo da Mulher, Legislação da Mulher, available athttp://www.universodamulher.com.br/default.asp?page=materia&VCodMateria=165, (consulted April 21, 2003).30 A Polícia , o Judiciário, as Mulheres, a Violência, Ibid.31 Fines are particularly low, often consisting in the donation to social institutions ofthe equivalent of a minimum salary in nature (60 R$, around 30 US$) or servingthe community through short-term tasks.32 U.S. Dep’t of State, Ibid.33 See Samantha Buglione, A mulher enquanto metáfora do Direito Penal, availableat http://www1.jus.com.br/doutrina/imprimir.asp?id=946, (consulted December 1,2002).34 When questioned on their capacities of response, 74% of these offices claim theydo not have sufficient human resources, 53% say their officers are not sufficientlytrained to deal with cases of violence perpetrated on women, 46% announce theirinfrastructure is not adequate, with 32% claiming the lack of weapons and 19%the lack of cars. 61% claim they do not have enough information circulatingbetween the offices.101

Violence Against Women: 10 Reports / Year 200335 Oliveira, Eliany, “Os direitos das mulheres e as políticas públicas”, in Jornal On-Line Noolhar.com, November 24, 2001, available at http://www.mj.gov.br/sedh/cndm/artigos/eliany.htm, (consulted December 1, 2002).36 The special police station of Londrina, for instance, points out that since its foundingin 1986 it has registered nearly 20’000 cases, of which only 10% have led to alegal inquiry, available at http://www.redesaude.org.br.37 Only one out of every ten men is considered guilty at the end of a lengthy trialprocess. These meagre results may strongly discourage women to carry out withthe legal proceedings. A significant portion of women declare there is no point inseeking help because they feel they won’t be recognized as victims.38 U.S. Dep’t of State, Ibid.39 A Polícia , o Judiciário, as Mulheres, a Violência, Ibid.40 A hotline was installed that encourages women to register complaints. The risingdemand of women and their children to stay in the shelters exceeds capacity andthe Rio state government began construction of additional facilities already duringthe past year.41 Reports received by Abrapia’s SOS Children service regarding 1169 cases ofdomestic violence between 1998 and 1999.42 Article 25 of the Penal Code.43 Human Rights Watch, Criminal Injustice, Violence against Women in Brazil, p.19.44 Article 121, §1°, relating to murder and article 129, §4°, relating to violent physicalassault, of the 1940 Brazilian Penal Code.45 Silvia Pimentel e Valéria Pandjiarjian, “Defesa da honra: tese superada?”, Folhade S. Paulo, (September 12, 2000), available at http://www.observatoriodaimprensa.com.br/artigos/iq200920003.htm,(consulted April 21, 2003).46 U.S. Dep’t of State, Ibid.47 Teixeira, Analba and Grossi Miriam, Honour Crimes: the murder of women in thestate of Rio Grande do Norte.48 Ibid.49 Article 215 of the Brazilian Penal Code.50 All the data included in this paragraph regarding rape rates is taken fromMJ/SENASP/DECASP/Coordenação de Estatisticas e Acompanhamento dasPolícias, http:/www.conjunturacriminal.com.br/dados/est-estupro.htm, consulted12.02.03.51 Statistics from the Ministry of Justice, available at http://www.mj.gov.br/Senasp/senasp/estat_atentado.htm.52 Statistics from the Ministry of Justice, available athttp://www.mj.gov.br/Senasp/senasp/estat_estupro.htm.53 Silvia Pimentel, Ana Lucia Pastore Schritzmeyer, Valéria Pandjiarjian, Estupro,direitos humanos, gênero e justiça, available at http://www.uol.com.br/cultvox/revistas/usp/_silvia.htm, (consulted February 12, 2003).54 U.S. Dep’t of State, Ibid.102

Brazil55 Article 216a of the Penal Code, available at http://www.dji.com.br/codigos/1940_dl_002848_cp/cp213a216.htm,(consulted February 12, 2003).56 U.S. Department of State, (2001), Victims of Trafficking and Violence ProtectionAct of 2000: Trafficking in Persons Report, available athttp://www.state.gov/g/inl/rls/tiprpt/2001.57 Ibid.58 Michael Hoskins, Trafficking in women for Sexual Exploitation, MetropolitanPolice Service, 199659 Defined as “the highest level of physical, mental and social well-being” by theOAS in the protocol of San Salvador, article 10. See Alison Phinney, Traffickingof Women and Children for Sexual Exploitation in the Americas, OAS, CIM,2000, available at www.oas.org/cim/English/Proj.Traf.AlisonPaper.htm.60 Alison Phinney, Ibid.61 Child Prostitution, ECPAT Bulletin, Vol. 4/1, 1996-9762 Center for Reference, Studies and Action for Children and Adolescents(CECRIA), (2000), Tráfico de Mulheres, Crianças e Adolescentes para Fins deExploração Sexual no Brasil, CECRIA, Brasília, Brazil63 Coalition Against Trafficking in Women, The Fact Book on Global SexualExploitation (1999).64 ECPAT International, available at http://www.ecpat.net/eng/index.asp, (consultedApril 22, 2003).65 O CHAME, (1998), O que é que a Bahia tem: o outro lado do Turismo emSalvador. Projeto CHAME/NEIM/UFBa, Salvador, Brazil.66 For more details, see Human Rights Watch, Brazil Report, available athttp://www.hrw.org/wr2k3/americas2.html, (consulted March 13, 2003).67 U.N. Doc. E/CN.4/2001/66/Add.2.68 Ibid.69 Ibid.70 U.S. Dep’t of State, Ibid.71 Law 9455/97, available at http://www.dji.com.br/leis_ordinarias/1990-008072-ch/8072-90.htm, (consulted February 12, 2003).72 In 1999 the Globo Newspaper in Rio de Janeiro published the results of an investigationinto the allegations of torture against state police. The police opened a totalof 53 investigations regarding complaints of torture against authorities between1997, when the torture law came into effect, and 1999. Only one of the inquiries,which had been suspended, had been officially concluded.73 U.S. Dep’t of State, Ibid.74 Constitution of Brazil, art. 5, sec. XLIX. The Brazilian Penal Code also states thatprisoners “retain all rights, except those that are not included because of the lossof liberty,” and that the authorities are under “the obligation to respect [prisoners’]physical and moral integrity.” Penal Code, art. 38.75 São Paulo Constitution, art. 143, sec. 4.76 Ministry of Justice, Conselho Nacional de Política Criminal e Penitenciária,Regras mínimas para o tratamento do preso no Brasil, Brasília: ConselhoNacional de Política Criminal e Penitenciária, 1995103

Violence Against Women: 10 Reports / Year 200377 Human Rights Watch, Brazil Report, available at http://www.hrw.org/wr2k3/americas2.html, (consulted March 13, 2003).78 Jornal da Trade, available at http://www.jt.estadao.com.br/editorias/2001/04/28/ger156.html, (consulted April 23, 2003).79 Lei de Execução Penal, art. 77, sec. 2. The provision makes an exception for specializedtechnical personnel such as doctors. Similarly, article 53 (3) of theStandard Minimum Rules states: Women prisoners shall be attended and supervisedonly by women officers. This does not, however, preclude male members ofthe staff, particularly doctors and teachers, from carrying out their professionalduties in institutions or parts of institutions set aside for women. In additions, article53 (2) of the U.N. Standard Minimum Rules bars male staff members fromentering women’s facilities or sections outside of the presence of a female officer.80 Human Rights Watch, O Brasil atrás das grades, available athttp://www.hrw.org/portuguese/reports/presos/detentas2.htm, (consulted April 22,2003).81 U.N. Standard Minimum Rules, rule 8; Penal Reform International, MakingStandards Work, The Hague: Penal Reform International, 1995.82 Only 13% of female prisoners declared receiving intimate visits. From those whodidn’t, 20% affirmed it was to difficult to obtain and 14% said they were ashamedof asking. Though a simple written confirmation of the companion allows themale prisoners to receive their visit up to twice a week, female prisoners must seetheir companions for four months in a row on regular visits without having sexbefore being allowed to a maximum of two intimate visits per month. In these circumstancesmany women become homosexual by the force of circumstances,especially if they remain in prison for longer than a couple of years (20% over thefirst year, 52% after four years). Data from an inquiry made at PenitenciáriaFeminina Madre Pelletier in Porto Alegre/RS in 1997, available athttp://www1.jus.com.br/doutrina/imprimir.asp?id=946, (consulted December 1,2002).83 Ibid.84 The women’s prison in João Pessoa, Paraíba, for example, lacks an infirmaryand a doctor; medical care is provided by a nurse who visits three mornings aweek.85 More public attention was drawn to this issue recently as Rede Saúde held for aperiod of 2 years (2000-2002) the coordination of the 28th September RegionalCampaign for abortion liberalisation in Latin America and the Caribbean. ThisCampaign, held since 1993, is supported by hundreds of NGOs in 18 countries.86 UN Doc. HRI/GEN/1/Rev.5, General Comment No. 14 of the UN Committee onEconomic, Social and Cultural Rights.87 Dossiê Aborto Inseguro, Direito ao aborto: um debate contínuo e crescente, availableat http://www.redesaude.org.br/dossies/html/body_ab-direito.html, (consultedDecember 9, 2002)88 Aborto Legal por Estupro – Primeiro Programa Público do País, available athttp://www.cfm.org.br/revista/bio1v2/abortleg.html, (consulted February 12,2003).89 Sistema único de saúde, public single health care system.104

Brazil90 JB Online, Brazil, Norma técnica da Saúde aumenta aborto legal, available athttp://jbonline.terra.com.br/papel/brasil/2001/12/01/jorbra20011201005.html,(consulted April 22, 2003).91 Alessandra Casanova Guedes, Cooperation Program on the RegulatoryFramework on Family Health, Maternity, Woman and Indigenous Populations,available at http://165.158.1.110/english/hpp/downloads/brasil.pdf , (consultedApril 22, 2003).92 In August 2002, the Ministry of Health published the 2nd edition of TechnicalStandard regarding the prevention and treatment of the ill resulting from sexualviolence, available at http://www.aids.gov.br/final/assis/norma.pdf, (consultedApril 22, 2003).93 Estimate of the Rede Nacional de Saúde e Direitos Reprodutivos, available athttp://www.redesaude.org.br, (consulted December 09, 2002).94 Dossiê Aborto Inseguro, available at http://www.redesaude.org.br/dossies/html/body_ab-internacoes.html, (consulted December 9, 2002).95 Costa, A. M.; Moura M. A. V., Aborto legal: o desafio de se cumprir a lei,Nesp/Ceam/UnB, Brasília, 1999.96 Ministry of Justice, Brazil, available at http://www.mj.gov.br/sedh/cndm/genero/saude/BR_nfm007_1999.htm.97 Thus the less studies women have accomplished, the higher this rate becomes.Women who have only achieved up to 3 years of studies have a fecundity rate of3.7, while for women who have studied more than 7 years this rate drop as low as1.6. From North to South there are considerable differences as well. For instancein the North uneducated women have a fecundity rate of 5.1, while educatedwomen still attain more than the national average at 1.9. The South, Southeast andCenter West regions all have rates under the national average, even when comparingthe values for uneducated women. Black women, at an average of 3.4, tend tohave a higher fecundity rate than white women, at 2.4.98 Ministry of Justice, Brazil, available at http://www.mj.gov.br/sedh/cndm/genero/saude/BR_nfm004_1998.htm.99 Ibid.100Ibid.105

Violence Against Women: 10 Reports / Year 2003Committee on Economic, Socialand Cultural RightsTHIRTIETH SESSION – 5 - 23 MAY 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLES 16 AND 17 OF THE COVENANTCONCLUDING OBSERVATIONS OF THE COMMITTEE ON ECONOMIC,SOCIAL AND CULTURAL RIGHTS: BRAZIL1. The Committee on Economic, Social and Cultural Rights consideredthe initial report of Brazil on the implementation of the InternationalCovenant on Economic, Social and Cultural Rights (E/1990/5/Add.53)at its eight, ninth and tenth meetings, held on 8 and 9 May 2003(E/C.12/2003/SR.8, 9 and 10), and adopted, at its twenty-ninth meetingheld on 23 May 2003, the following concluding observations.A. Introduction2. The Committee welcomes the submission of the initial report of Brazil,which has been prepared in conformity with the Committee's guidelines,but regrets the late submission of the report and the absence ofwritten replies to its list of issues (E/C.12/Q/BRA/1).3. While welcoming the frank nature of the dialogue with the delegation,the Committee regrets that there were not enough experts in the delegationin the field of economic, social and cultural rights, who could providemore information to the Committee on the concrete measurestaken by the State party to implement its obligations under theCovenant.106

BrazilB. Positive aspects4. The Committee notes with appreciation that the Federal Constitutionadopted in 1988 incorporates a wide range of human rights, includinga number of the economic, social and cultural rights enshrined in theCovenant. The Committee also takes note that under article 5 of theConstitution, the rights and guarantees in international treaties towhich Brazil is party, are considered part of the national law.5. The Committee welcomes the adoption of the new civil code in year2002 which replaced the one of 1916 and established the principle ofequality between men and women.6. The Committee welcomes the adoption of a National Human RightsProgramme in May 1996 and the creation of a Secretariat of State forHuman Rights to monitor its implementation.7. The Committee welcomes the new programmes adopted by the Stateparty to combat discrimination, including the establishment of aNational Council on the Rights of Women, a National Council toCombat Discrimination and affirmative action programmes for Afro-Brazilians, in particular women.8. The Committee also welcomes the progress made in combating racialprejudices and barriers, which is illustrated by the appointment of personsof Afro-Brazilians origin to positions of high public office, onthe basis of their professional merits and qualifications.9. The Committee welcomes the program “Fome Zero” undertaken bythe State party aimed at eradicating hunger which affects a substantialportion of the population.10. The Committee takes note with appreciation the efforts made by theState party to reduce the rate of mortality caused by HIV/AIDS by 50per cent since 1996.11. The Committee notes with appreciation Constitutional AmendmentNo. 14 (adopted on 12 September, 1996), which established theNational Fund for Primary Education Development and Enhancingthe Value of the Teaching Profession (FUNDEF), reorganized the primaryeducation system and earmarked more resources to education.107

Violence Against Women: 10 Reports / Year 200312. The Committee welcomes the creation within the State party of independentSpecial Rapporteurs responsible for monitoring of economic,social and cultural rights, particularly the right to food, to health andto education.13. The Committee welcomes the positive position of the State party inrelation to the draft optional protocol to the ICESCR.14. The Committee welcomes the pro-active participation of civil societyin monitoring the implementation of the Covenant, including the provisionof a large amount of information to the Committee.C. Factors and Difficulties Impeding the Implementation ofthe Covenant15. The Committee notes that the persistent and extreme inequalities, andthe social injustice prevailing in the State party have negatively affectedthe implementation of the rights guaranteed by the Covenant.16. The Committee notes that the recent economic recession along withcertain aspects of the structural adjustment programmes and economicliberalization policies, have had some negative effects on the enjoymentof economic, social and cultural rights as enshrined in theCovenant, in particular by the most disadvantaged and marginalizedgroups.D. Principal Subjects of Concern17. The Committee notes with concern the persistent and extremeinequalities among the various geographic regions, states and municipalitiesand the social injustice prevalent in the State party. TheCommittee is also concerned about imbalances in the distribution ofresources and income and access to basic services in the State party.18. The Committee is concerned that there is a gap between the constitutionaland legislative provisions and administrative procedures set upto implement the Covenant rights and the absence of the necessary108

Brazileffective measures and remedies, judicial or otherwise, to upholdthese rights, especially with regard to the disadvantaged and marginalizedgroups.19. The Committee is concerned about the lack of adequate human rightstraining in the State party, in particular with respect to the rightsenshrined in the Covenant, especially among the judiciary, lawenforcement officials and other actors responsible for the implementationof the Covenant.20. The Committee is concerned about the widespread and deeply-rooteddiscrimination against Afro-Brazilians, indigenous people and minoritiesgroups such as Gypsies and the Quilombo communities.21. The Committee notes with concern that equal opportunities for personswith disabilities are hampered by physical barriers and lack ofappropriate facilities.22. The Committee is concerned about the widespread discriminationagainst women, in particular, in their access to the labour market, toequal pay for work of equal value and to an adequate representation atall levels of decision-making bodies of the State party.23. In spite of the State party's successful efforts to release many workersfrom forced labour, the Committee is deeply concerned about the persistenceof forced labour in Brazil, which is often close to slavery,particularly in the rural areas.24. The Committee is concerned that the national minimum wage is notsufficient to ensure an adequate standard of living for workers andtheir families.25. The Committee notes with concern the killing of landless farmers andthe members of trade unions defending them and the impunity ofthose responsible for committing these crimes.26. While takes note of the concern expressed by the State party in relationto the need for better policy coordination for children and youngpeople, the Committee requests the State party to include, in its nextperiodic report, information on measures taken to improve the functioningof services of children and young people.109

Violence Against Women: 10 Reports / Year 200327. The Committee notes with concern the high rate of maternal mortalitydue to illegal abortions, particularly in the northern regions wherewomen have insufficient access to health care facilities. TheCommittee is also concerned about the persistence of forced sterilization.28. The Committee is concerned that some articles of the Penal Code discriminateagainst women. In particular, it is concerned that article 215of the Code requires the victim of a minor sexual assault to be an"honest woman" in order to prosecute the offence.29. The Committee notes with concern that sexual and domestic violenceare widespread and not being sufficiently denounced in Brazil.30. The Committee is deeply concerned about the high incidence of traffickingin women for the purpose of sexual exploitation.31. The Committee notes with concern the high concentration of land inthe hands of a minority, and its negative effects on the equitable distributionof wealth.32. In spite of the efforts taken by the State party to reduce poverty, theCommittee is concerned about the persistence of the poverty in theState party, especially in the North-East and in rural areas, andamong the Afro-Brazilians and the disadvantaged and marginalizedgroups.33. The Committee notes with concern that, according to the State party'sreport, at least 42 per cent of families currently live in inadequatehousing facilities without adequate water supply, waste disposal andtrash collection. It also notes that 50% of the population of majorurban areas live in informal urban communities (illegal settlementsand homes, as stated in paragraph 512 of the State party's report).34. The Committee notes with concern that the State party has not facilitatedthe access to, and adequate provision of, housing credit and subsidiesto low-income families, especially the disadvantaged andmarginalized groups.35. The Committee is deeply concerned that State party does not providesufficient protection for indigenous peoples, who continue to be110

Brazilforcibly evicted from their lands and face threats to their lives andeven executions. The Committee also notes with concern that therights of indigenous peoples to land ownership are not respected andthat mineral, timber and other commercial interests have been allowedto expropriate with impunity, large portions of land belonging toindigenous peoples.36. The Committee is concerned about the forced eviction of theQuilombo communities from their ancestral lands, which are expropriatedwith impunity by mineral and other commercial interests.37. The Committee notes with concern about the living conditions of prisonersand detainees in the State party, especially with regard to provisionto access to health care facilities, adequate food and safe anddrinking water.38. Although the State party has reduced HIV/AIDS related mortality, theCommittee is concerned that, despite these efforts, there has been asignificant increase in cases among women and children.39. The Committee is concerned about the high rate of illiteracy in Brazilwhich, according to the State party's report, was 13.3 per cent in 1999,reflecting the social and economic inequalities still prevalent in thecountry.E. Suggestions and Recommandations40. The Committee recommends the State party to take immediate remedialaction to reduce the persistent and extreme inequalities andimbalances in the distribution of resources and income and access tobasic services among various geographical regions, states and municipalities,including speeding up the process of agrarian reform and ofgranting land titles.41. The Committee urges the State party to take immediate remedialaction to ensure that all the Covenant rights are effectively upheld andthat concrete remedies, judicial or otherwise, are provided to thosewhose economic, social and cultural rights are infringed, especially inrelation to the disadvantaged and marginalized groups. In this regard,111

Violence Against Women: 10 Reports / Year 2003the Committee draws the attention of the State party to its GeneralComment No. 9 on the domestic application of the Covenant.42. The Committee recommends that the State party improve its humanrights training programmes in such a way as to ensure better knowledge,awareness and application of the Covenant and other internationalhuman rights instruments, in particular among the judiciary,law enforcement officials and other actors responsible for the implementationof the Covenant.43. The Committee strongly recommends that the State party's obligationsunder the Covenant should be taken into account in all aspectsof its negotiations with the international financial institutions toensure that the enjoyment of economic, social and cultural rights, particularlyby the most disadvantaged and marginalized groups, are notundermined.44. The Committee urges the State party to take all effective measures toprohibit discrimination on the basis of race, colour, ethnic origin orsex in all fields of economic, social and cultural life. It further recommendsthat the State party undertake urgent measures to ensure equalopportunity for Afro-Brazilians, indigenous peoples and minoritygroups such as Gypsies and the Quilombo communities, especially inthe field of employment, health and education. The Committee alsorequests the State party to include in its second periodic reportdetailed and comprehensive information, including comparative anddisaggregated statistical data on these matters.45. The Committee urges the State party to adopt all effective measures toensure equality between men and women as provided for in articles 2(2), and 3 of the Covenant. The Committee also requests the Stateparty to adopt in its relevant policies the principle of equal pay forwork of equal value as provided for in the Covenant; to reduce thewage gap between men and women; and to provide detailed informationon these matters in the State party's second periodic report.46. The Committee urges that the State party adopt concrete measures toenable persons with disabilities to enjoy fully the rights guaranteed bythe Covenant.112

Brazil47. The Committee urges the State party to implement its National Planfor the Eradication of Slave Labour and to undertake urgent measuresin this regard, especially through the imposition of effective penalties.48. The Committee calls upon the State party to ensure that the minimumwage enables workers and their families to enjoy an adequate standardof living.49. The Committee urges the State party to take legal action against thosewho are responsible for committing crimes against landless farmersand members of trade unions and to take effective and preventivemeasures to insure protection to all farmers and members of tradeunions.50. In light of the indication given by the State party that the reform ofthe social security system foresees an improved role for the State infundamental areas of social development, the Committee recommendsto the State party in this regard that the social security system and thesocial development measures take into account the needs of disadvantagedand marginalized groups.51. The Committee requests the State party to undertake legislative andother measures, including a review of its present legislation, to protectwomen from the effects of clandestine and unsafe abortion and toinsure that women do not resort to such harmful procedures. TheCommittee requests the State party to provide in its next periodicreport detailed information, based on comparative data, about maternalmortality and abortion in Brazil.52. The Committee calls upon the State party to repeal all discriminatoryprovisions contained in the Penal Code, in particular article 215.53. The Committee calls upon the State party to take all effective measures,including the enforcement of existing legislation and the extensionof national awareness campaigns, to eliminate all forms ofviolence against women. The Committee also recommends that theState party insure that the police are trained to handle violence againstwomen in addition to the “delegacies da mulher” in all parts of thecountry.113

Violence Against Women: 10 Reports / Year 200354. The Committee recommends the adoption by the State party of a specificanti-trafficking in persons legislation and to insure its effectiveimplementation.55. The Committee urges the State party to take effective measures tocombat the problem of poverty, including the setting up of a NationalPlan of Action against Poverty integrating economic, social and culturalrights. In this regard, the Committee refers the State party to itsStatement on Poverty and the International Covenant on Economic,Social and Cultural Rights adopted on 4 May 20001(E/C.12/2001/10).56. The Committee urges the State party to give effect to its NationalHousing Policy and its Federal housing programmes and to adoptnation wide policies in order to insure that families have adequatehousing facilities and amenities. In this respect, the Committee drawsthe State party's attention to its General Comment No. 4 on the Rightto Adequate Housing.57. The Committee urges the State party to provide access to housingcredit, and subsidies to low-income families and the disadvantagedand marginalized groups.58. The Committee calls upon the State party to ensure that indigenouspeoples are effectively protected from threat and danger to their livesand eviction from their lands. The Committee particularly urges theState party to seek the consent of the indigenous peoples concernedprior to the implementation of timber, soil or subsoil mining projectsand of any public policy affecting them, in accordance with ILOConvention No. 169.59. The Committee urges the State party to adopt measures to guaranteethe ancestral lands of the Quilombo communities and in case offorced eviction to insure that this is carried out in complies with theguidelines set out in General Comment No.7 of the Committee.60. The Committee urges the State party to take effective measures,including policies, programmes and specific legislation aimed atimproving the living conditions of prisoners and detainees.61. The Committee urges the State party to undertake appropriate measuresto insure effective realisation of agrarian reform.114

Brazil62. The Committee urges the State party to continue its prevention andhealth care efforts, by providing sexual and reproductive health servicesto the population, with particular emphasis on those for women,young people and children.63. The Committee requests the State party to adopt effective measures tocombat illiteracy and to provide, in its next periodic report informationon the measures undertaken by the State party and on the resultsof these measures. The Committee also requests the State party toinclude disaggregated and comparative statistics in its periodic report.64. The Committee requests the State party to disseminate the presentconcluding observations widely at all levels of the society and, in particular,among State officials and the judiciary and to inform theCommittee, in its next periodic report, of all steps undertaken toimplement them.65. The Committee also encourages the State party to continue to consultwith non-governmental organizations and other members of the civilsociety when preparing the next periodic report.66. The Committee requests the State party to submit its second periodicreport by 30 June 2006.115

Violence against Women in CameroonA Report to the Committee against TortureContents1. Preliminary Observations .............................................................................................................................. 1191.1 Cameroon’s International Legal Obligations .................................................. 1191.2 General Observations on the Human RightsSituation on Cameroon........................................................................................................................ 1222. Status of Women ........................................................................................................................................................ 1233. Violence against Women Perpetrated by the State .................................................. 1283.1 Legal Safeguards to Prevent Torture........................................................................... 1283.2 De Facto Situation ................................................................................................................................... 1293.3 Torture and Ill-treatment of Women ......................................................................... 1303.4 Threats against Women Human Rights Defenders .................................... 1314. Violence against Women in the Family ...................................................................................... 1324-1 Woman Battering ....................................................................................................................................... 1324.2 Marital Rape ..................................................................................................................................................... 1334.3 Female Genital Mutilation (FGM) .................................................................................. 1335. Violence Against Women in the Community ...................................................................... 1355-1 Rape ................................................................................................................................................................................ 1355.2 Trafficking and Exploitation of Prostitution of Women ................ 1355.2.1 Cameroonian and International Laws Dealingwith Trafficking ............................................................................................................................ 1365.2.2 Trafficking for labour and sexual exploitation ............................. 1376. Sexual and Reproductive Rights: Abortion Policy ..................................................... 1387. Conclusions and Recommendations ............................................................................................... 139Concluding observations of the Committee against Torture:CameroonThirty-first session – 10-21 November 2003Consideration of Reports Submitted by States PartiesUnder Article 19 of the Convention ....................................................................................................... 146A. Introduction ..................................................................................................................................................... 146B. Positive aspects .............................................................................................................................................. 146C. Subjects of concern ............................................................................................................................... 146D. Recommendations ...................................................................................................................................... 150117

Cameroon1. Preliminary ObservationsThe submission of information specifically relating to violence againstwomen to the United Nations Committee against Torture forms part ofOMCT’s Violence against Women Programme which focuses on integratinga gender perspective into the work of the five “mainstream” UnitedNations Human Rights Treaty Bodies. The need to integrate the humanrights of women into the work of the human rights treaty bodies wasstressed at the 1993 Vienna World Conference 1 on Human Rights and thereiterated in the Beijing Platform for Action adopted in 1995 by theFourth World Conference on Women. 2The current report is the second alternative report on violence againstwomen in Cameroon submitted by OMCT to the Committee againstTorture after having submitted one in November 2000. Like the secondreport reviewed in 2000, the third report submitted by Cameroon to theCommittee against Torture (CAT/C/34/Add.17) in accordance with article19(1) of the Convention against Torture and other cruel, inhuman ordegrading treatment or punishment provides once again no gender disaggregatedinformation concerning torture and other forms of violenceagainst women. OMCT regrets the lack of information provided as, inreality, violence against women at the hands of state agents as well as privateindividuals appears to be a widespread human rights violation inCameroon.In the light of the lack of information on gender-based torture and otherforms of violence against women in the government report, this reportwill examine the effects of gender on the form that torture in Cameroontakes, the circumstances in which the torture occurs, the consequences ofthe torture, and the accessibility of remedies and reparations by women.In this report, OMCT will focus on violence against women in Cameroon,which is often met with impunity. Particular emphasis will be given to thelegal, economic, and social status of women in Cameroon, violence at thehands of state officials, domestic violence, traditional practices, rape andtrafficking in women, and reproductive rights of women.1.1 Cameroon’s International Legal ObligationsThe Republic of Cameroon acceded to the Convention against Torture and119

Violence Against Women: 10 Reports / Year 2003Other Cruel or Degrading Treatment or Punishment on 19 December1986. On 12 October 2000, Cameroon declared with regard to article 21of the Convention against Torture that it recognizes the competence of theCommittee against Torture to receive and consider communications froma State Party claiming that the Republic of Cameroon is not fulfilling itsobligations under the Convention. However, such communications willnot be receivable unless they refer to situations and facts subsequent tothis declaration and emanate from a State Party, which has made a similardeclaration indicating its reciprocal acceptance of the competence of theCommittee with regard to itself at least twelve (12) months before submittingits communication. With regard to article 22 of the Convention,Cameroon also declared on 12 October 2000, that it recognizes, in thecase of situations and facts subsequent to this declaration, the competenceof the Committee against Torture to receive and consider communicationsfrom or on behalf of individuals subject to its jurisdiction who claim to bevictims of a violation by a State Party of the provisions of the Convention.Cameroon ratified the Convention on the Elimination of All Forms ofDiscrimination against Women on 23 August 1994. In 1992, theCommittee on the Elimination of Discrimination against Women(CEDAW) adopted General Recommendation 19 in which it confirmedthat violence against women constitutes a violation of human rights.However, OMCT notes that Cameroon has not ratified the OptionalProtocol to the Convention on the Elimination of All Forms ofDiscrimination against Women.Cameroon acceded to the International Covenant on Civil and PoliticalRights (ICCPR) on 27 June 1984. In March 2000, the Human RightsCommittee adopted a new General Comment on article 3 of the ICCPRwhich deals with the equal right of men and women to enjoy all rights setforth in that Covenant. This General Comment 28 states that, in order toassess compliance with article 7 of the Covenant, which deals with torture,the Committee must receive information on national laws and practicewith regard to domestic and other types of violence against women,including rape, on access to safe abortion for women who have becomepregnant as a result of rape, and on measures to prevent forced abortion orforced sterilization. 3 Cameroon has ratified the First but not the SecondOptional to the ICCPR.120

CameroonFurthermore, Cameroon acceded to the International Covenant onEconomic, Social and Cultural Rights (ICESCR) on 27 June 1984, andratified the International Convention on the Elimination of All Forms ofRacial Discrimination on 24 June 1971. Cameroon has also been a StateParty to the Convention on the Rights of the Child since 11 January 1993.Cameroon has only signed, but has not ratified, the two optional Protocolsto the Convention on the Rights of the Child on the involvement of childrenin armed conflict and on the sale of children, child prostitution andchild pornography on 5 October 2001. Further it ratified the Treaty ofRome establishing the International Criminal Court.Cameroon has neither signed nor ratified the Convention on Protection ofRights of Migrant Workers, which entered into force on 1 July 2003.At the regional level, Cameroon is a State Party to the African Charter onHuman and People’s Rights. This Charter, mirroring other internationalhuman rights instruments, protects all individuals against violence includingtorture or cruel, inhuman or degrading treatments and provides for thepromotion of gender equality. Thus, article 2 of the Charter states that“Every individual shall be entitled to the enjoyment of the rights and freedomsrecognized and guaranteed in the present Charter without distinctionof any kind such as … sex, …”. Article 3 guarantees that all are“equal before the law” and that everyone is “entitled to equal protection ofthe law”. Article 4 protects each human being’s right to life and to physicaland moral integrity followed by article 5 which forbids physical orpsychological torture and cruel, inhuman or degrading treatment or punishment.Article 18(3) provides that States Parties shall ensure the eliminationof all forms of discrimination against women as well as protectionfor the rights of women “as stipulated in international declarations andconventions.”On 11 July 2003, the Protocol to the African Charter on Human andPeoples’ Rights on the Rights of Women in Africa was adopted by theAssembly of the African Union second summit in Maputo Mozambique.The Protocol will enter into force thirty (30) days after the deposit of thefifteenth (15) instrument of ratification. The Protocol will complement theAfrican Charter in ensuring the promotion and protection of the humanrights of women in Africa. Its provisions include the right to life, integrityand security of person, right to participation in the political and decision121

Violence Against Women: 10 Reports / Year 2003making process, right to inheritance, right to food security and adequatehousing, protection of women against harmful traditional practices andprotection of women in armed conflict. Others include access of womento justice and equal protection before the law.In Cameroon, human rights instruments are generally incorporated intonational law simply by means of ratification. OMCT notes that article 45of the Constitution of Cameroon states that duly approved or ratifiedtreaties and international agreements have priority over national law.Nonetheless, the Committee against Torture argued, when it examined theimplementation of the Convention against Torture by Cameroon in theyear 2000, for greater protection of the of Cameroon’s international commitmentsin its domestic law, so as to be more easily accessible to judgesand lawyers. 4 Also the Committee on the Economic, Social and CulturalRights expressed its concern about the exact legal status of the Covenantin the Cameroonian legal system and whether it can be invoked in nationalcourts of law. 51.2 General Observations on the Human Rights Situation onCameroonCameroon has more than 200 different ethnic groups, many of which arespread across neighbouring countries. 6 French and English are the twoofficial languages, but 270 different languages are spoken, representing24 language groups. The country is dominated by three major religions:Christian (40%), Muslim (20%), indigenous believers (40%). 7Since its independence on 1 January 1960, Cameroon has been governedby the same party and since 1982, Paul Biya has been the head of state,in whom power is highly centralised. The Bulu ethnic group, to whichthe president belongs, and the related Beti groups dominate the civil service,the management of state-owned businesses, the security forces, themilitary and the ruling Cameroon People’s Democratic Movement(CPDM). 8Cameroon is a poor country. In 2001, its Human Development Index was0,499, ranking it at 142 nd in the world. 9 Between 1990 and 2001, 33.4%of the population was living below 1 USD a day. 10122

CameroonDuring the last session of the Committee against Torture in 2000,Cameroon admitted that its human rights record “left a good deal to bedesired.” 11 The UN Committee against Torture cited in 2000 a number ofproblems relating to police custody, the independence of the judiciary, thesupervision of prison conditions and the need to investigate all allegationsof torture and ill-treatment. 12 Cameroon’s “concern with security and stability”apparently overrides “all other considerations, including some fundamentalhuman rights.” 13 In its Concluding Observations, the Committeeagainst Torture expressed concern at, among others:(a) The fact that, despite the policy pursued by the Government, tortureseems to remain a widespread practice;(b) The continuing practice of administrative detention, which allows theauthorities reporting to or forming part of the executive branch (theMinistry of the Interior) to violate individual liberty, somethingwhich, under the rule of law, should come under the jurisdiction of thejudiciary;(c) The gap between the adoption of rules in accordance with humanrights standards, including those designed to prevent the practice oftorture, and the findings made in situ by an independent entity such asthe Special Rapporteur on the question of torture, who reports theexistence of numerous cases of torture;(d) The imbalance between the large number of allegations of torture orill-treatment and the small number of prosecutions and trials; 14No mention was made about gender-based human rights violations againstwomen.2. Status of Women in CameroonAn analysis of the legal and socio-economic and political status of womenin Cameroon shows the link between the high levels of violence againstwomen in Cameroon and their low status in all aspects of life. Besides thefact that laws relating to women’s legal status reflect social attitudes thataffect the human rights of women, such laws often have a direct impact onwomen’s ability to exercise those rights. The legal context of family life,123

Violence Against Women: 10 Reports / Year 2003laws affecting women’s socio-economic status, women’s access to education,the labour market and politics contribute to violence against womenand their access to redress and reparation.As a result of the ethnic diversity, one can not distinguish theCameroonian woman in a gender profile. However, all ethnic groups givegreat importance to local traditions, which widely detrimentally affect thestatus of women and their enjoyment of human rights.Cameroon inherited two different legal systems; notably French law fromthe former Oriental Cameroon and British law from the former OccidentalCameroon, which coexist with local customary law. In addition to regionallaws, there is a growing body of federal laws. While criminal proceduresremain distinct between East and West Cameroon, criminal lawitself was unified between 1965 and 1967 in one single Penal Code. 15Women in Cameroon experience high levels of discrimination, whichdespite Constitutional provisions recognising the human rights of women,is also enshrined in the law. No legal definition of discrimination exists.However, civil law offers a more equal standard than customary law,another source of law in Cameroon, which is far more discriminatoryagainst women. The broad persistence of customary law infringes thehuman rights of women, particularly in the areas of marriage and inheritancelaws. Customary law varies depending on the ethnicity of the partiesinvolved and the region. 16 In cases where the two types of legal systemshave equal weight, an individual can choose whether to bring the casebefore the statutory law courts or customary law courts. The traditionaljurisdiction cites custom except when custom is opposed to law and orderand good morals. 17 The Supreme Court has sanctioned the primacy ofcontemporary law over traditional law. 18 However, due to the importanceattached to traditions and customs, laws protecting women are often notrespected. 19The United Nations has on several occasions expressed concern about thelack of progress made by the Government of Cameroon in reforming lawsand combating practices that discriminate against women and girls andviolate their human rights. 20In its Constitution signed on 2 June 1972, and revised by law No. 96/06124

Cameroonon 18 January1996, Cameroon incorporated some provisions of theUniversal Declaration of Human Rights as well as of the African Charterof Human and People’s Rights in the Preamble. The Preamble states thatthe nation “shall protect women, the young, the elderly and the disabled.”According to article 65 of the Constitution, the Preamble has legal force:“The Preamble shall be part and parcel of the Constitution.” The Preambleof the Constitution of Cameroon includes several provisions that enshrinegender equality: “We the people of Cameroon declare that:the State shall guarantee all citizens of either sex the rights andfreedoms set fort in the Preamble of the constitution;the human person, without distinction as to race, religion, sex orbelief, possesses inalienable and sacred rights;all shall have the same equal rights and obligation.”Concerning discriminatory written laws, Article 213 of the Civil Codedesignates the husband as the head of the family, and as such he is regardedthe principal moral and financial manager. It is the husband who establishesthe marital home, and the household expenses are his mainresponsibility. Articles 108 and 215 of the Civil Code grant the husbandthe sole right to determine the family domicile. According to articles 1421and 1428 of the Civil Code, women are not fully entitled to use, enjoy orsell their property, although this right is stipulated in the Constitution. Inthis context, article 1421 grants the husband the right to administer communalproperty, thereby giving him the right to sell or mortgage the couple’sproperty without the wife’s consent. The husband also manages hiswife’s personal property, and exercises all rights to it. 21Article 7 of the Trade Code allows a husband to interrupt his wife’s workingactivity through notification of his opposition to the Trade Tribunal.Article 223 of the Civil Code and article 74 of Ordinance 81/02 of June1981 gives the husband the power to object to his wife’s pursuit of a separatetrade or profession.When a marriage ends, the community property should in theory beshared equitably between the two ex-spouses, but in practice the womenoften must renounce her property rights. 22 However, according to article1449 of the Civil Code, the woman regains her personal property.125

Violence Against Women: 10 Reports / Year 2003Articles 229 et seq of the Civil Code regulate all aspects of divorce. Itonly recognises fault-based divorce, on the grounds of adultery, therevocation of one spouse’s civil rights resulting from an afflictive anddefamatory penalty, or domestic abuse or injuries. According to the law,to be recognised as grounds for divorce, these actions, must constitute aserious or recurring violation of the marriage duty and obligations aswell as make it intolerable to maintain the marriage bond. According toarticle 229, the first two grounds are mandatory; when proved, the judgemust grant a divorce. The grounds of domestic abuse or injuries areoptional; the granting of the divorce is discretionary for the judge. In thecustomary law of some ethnic groups, husbands not only maintain completecontrol over family property, but also can divorce their wives in atraditional court without being required to provide justification or givealimony. 23Although, women have, according to the Civil Code, the same rights toinheritance as men, the reality is very different as the extent to which awoman may inherit from her husband is normally governed by customarylaw in the absence of a will, which vary from group to group. In fact, amarried woman is considered part of her husband’s “estate,” grouped withhis personal property and real estate. 24Moreover, polygamy is permitted by law and tradition whereas polyandryis not. 25 In its General recommendation N o 20, the Committee on theElimination of Discrimination against Women states that polygamy violatesthe rights of women. 26Article 361 of the Penal Code defines the crime of adultery in terms morefavourable to men than women. While a man may be convicted of adulteryif the sexual acts take place in his home, a female may be convictedwithout respect to venue.Also, under the law, men and women have the same right to enter intomarriage and freely choose a spouse. However, OMCT is concerned bythe difference between the minimum legal ages for marriage of boys (18years) and that of girls (15 years), which is gender discriminatory andallows for the practice of early marriage, which is still widespread inCameroon. A study carried out in Cameroon revealed that girls agedbetween 15 and 19 account for 24% of married women. 27 OMCT noteswith particular concern that despite the law in certain communities, girls126

Cameroonare even married off at the age 12 years old. 28 In many of these cases, thegirls are forced into marriage.Often the parents of the bride are paid a “bride price” by the husband. Thebride price is governed by the Civil Code, which, in articles 1540 and1541, defines it as follows: “The dowry is the property which the wifebrings to the husband for bearing the costs of the marriage. Everythingthat the wife brings with her or that is given to her under the marriagecontract ..., unless otherwise stipulated.” However, in the current practice,the dowry may be defined as the goods, which a future husband contributesto the family of his future wife. This has led men to regard theirwife as property for which they have paid and the men and his family feelentitled to the physical labour of the wife. 29 It makes it also extremely difficultfor a woman to divorce her husband.When the husband dies, the widow is often unable to inherit since she isconsidered to be part of the inheritance herself. A practice related todowry payments is the forcing of a widow to marry one of the deceased’sbrothers.Moreover, early motherhood constitutes a serious health and emotionalrisk for young girls, many of whom are unable to take care of their babiesor who die in the process of giving birth. Furthermore, an early marriageleads to girls dropping out of school and therefore to the vicious circle ofpoverty, lack of power and at the end, again, violence. It must be notedthat the age at which women get married in urban areas is higher than inrural areas. Nevertheless, regardless of residence, it seems that entry intomarriage at an older age has been the trend. This phenomenon is attributedto the increase in the school attendance rate of girls. 30Women in Cameroon are also discriminated from a de facto point of view.51% of the population in Cameroon live below the poverty line and povertyhas an increasingly feminine face, affecting women in particular. 31 Asa result more and more women and girls enter prostitution and are therebyexposed to exploitation.The pervasive poverty in the country impacts services such as health andeducation. According to UNICEF, in the year 2000, the adult literacy rateamong men was 82% whereas the adult literacy rate of women was69%. 32 The net primary school enrolment of boys was 76% between 1992127

Violence Against Women: 10 Reports / Year 2003and 2001 and that of girls 71%. 33 In addition, fewer girls are found in secondaryschools; their gross enrolment between 1995 and 1999 was 17 %as opposed to 22% of that of boys. 34Since the elections of February 2002, of the 180 seats in Parliament, only16 (8.6% ) are occupied by women. 35 This lack of opportunity for womento take decisions at the political level has serious implications for theadvancement of women and their enjoyment of human rights.3. Violence against Women Perpetrated by the State3.1 Legal Safeguards to Prevent TortureThe Preamble of the Constitution provides for several safeguards againsttorture. With regard to torture, in particular, the preamble contains the followingclause: “Every person has the right to life, to physical and moralintegrity and to humane treatment in all circumstances. Under no circumstancesshall any person be subjected to torture, to cruel, inhumane ordegrading treatment.” Moreover, the constitution includes the followingprovisions: “No person may be prosecuted, arrested or detained except inthe cases and according to the manner determined by law,” “everybodyhas the right to a fair trial,” and “no person shall be harassed on groundsof his origin, religious, philosophical opinions or beliefs, subject torespect for public policy.”OMCT welcomes the fact that in 1997 Cameroon adopted an article in thePenal Code concerning torture. 36 The definition presented in art. 132bisof the Penal Code is in line with the Convention against Torture. Art.132bis section 5 (a) reads:“[t]he term torture refers to any act by which pain or severesuffering, whether physical, mental or moral, is intentionallyinflicted on a person by a public official or any other personacting in an official capacity or at his instigation or with hisconsent, whether explicitly or implicitly, for such purposesas obtaining from him or a third person information or aconfession, punishing him for an act he or a third person has128

Camerooncommitted or is suspected of having committed, or intimidatingor coercing him or a third person, or for any reasonbased on discrimination of any kind.” 37Moreover, the same article states under section 5(c) and (d), in compliancewith the Convention against Torture, that exceptional circumstancessuch as a state of war, a threat of war or internal political instability, anddefence on the grounds of an order from a superior officer, are not admitted.The Penal Code requires that all detainees are brought promptly before amagistrate. Where a case reaches trial, the Constitution provides for anindependent judiciary.The Constitution also provides for a number of other human rightsincluding the inviolability of the home, protection against illegal search,the privacy of all correspondence, freedom of expression and the pressand freedom of religion. However, the Penal Code contains libel lawsthat punish “defamation, abuse, contempt and dissemination of falsenews” with prison terms and heavy fines. Moreover, it prohibits publicmeetings, demonstrations and processions without prior governmentapproval.A 1992 Presidential Decree on prison conditions guarantees the right ofevery detainee to food, clothing, bedding, health, hygiene, wages forprison work, cultural and recreational activities and the right to file a complaint.383.2 De Facto SituationOMCT has received since its submission of its first report on violenceagainst women in Cameroon in 2000 various credible reports on torture,arbitrary arrests and extra-judicial killings in Cameroon by securityforces, including the Operation Command. OMCT has issued 2 urgentappeals on arbitrary arrests and detention following a demonstration, 39 1urgent appeal on the extra-judicial killings of three demonstrators andarbitrary arrests, 40 1 urgent appeal on death in detention, 41 and 1 urgentappeal on death threats against a victim of torture after having lodged acomplaint. 42 129

Violence Against Women: 10 Reports / Year 2003OMCT is concerned about the persistence of torture and other cruel, inhumanand degrading treatment against prisoners and detainees by securityforces. Torture and ill-treatment in prison in Cameroon reportedlyincludes gunshots, burns, strikes with machetes, strikes with the butt of afirearm, the ripping out of toe and finger nails, the withholding of medicalcare and adequate food supplies, overcrowding with inadequate sanitationfacilities and beatings, especially on the soles of the feet, legs, arms andbacks, sexual assault, forced nakedness, and electrical torture. On severaloccasions, this torture has resulted in the deaths of detainees.Torture continues to be used to extract confessions and such confessionscontinue to be accepted as evidence in court. 43 Contrary to its commitmentto the provisions of article 14 of the Convention against Torture,Cameroon still lacks legislative provisions for the compensation and rehabilitationof victims of torture. 44Cases of torture and other forms of violence generally go unpunished inCameroon. Many cases are not reported to the authorities because of fearof reprisal and ignorance. Despite legal protection, the judiciary isinefficient and subject to political influence and corruption. 45 Chartinglevels of corruption in 133 countries, Transparency International ratedCameroon as a very corrupt country by placing it at number 124. 46Moreover, detainees are often not brought promptly before amagistrate.3.3 Torture and Ill-treatment of WomenIn violation of article 8 of the Standard Minimum Rules for the Treatmentof Prisoners and article 20 of Decree 92/052 of 27 March 1992 whichstipulates that “women must be strictly segregated from men,” femaleprisoners are often housed with male prisoners. The female prisonersare subjected to sexual violence by other prisoners as well as Stateofficials.Also during his mission, the Special Rapporteur on Torture found onewoman in a cell with men in the Yaoundé criminal investigation unit,and she confirmed that she had always shared the cell with them, andone woman who had to sleep with her nine-month old child on a strawmattress in the entrance lobby of the police station. 47130

CameroonPrisons are overcrowded. According to ACAT Littoral, there are only 40beds and 2 showers for 85 female prisoners in the female prison ofDouala.In the calendar years 2000 and 2001, the Medical Foundation for the Careof Victims of Torture in London documented evidence of torture in a totalof 60% refugees from Cameroon. Of these, 27 were women. Of the 27Cameroonian women receiving treatment by the Medical Foundation, 25women had been raped by agents of the Cameroonian State and/or whilein custody of the State. 48 Women also variously reported to the MedicalFoundation for the Care of Victims of Torture that they were housednaked in a mixed cell, stripped naked and forced to dance, their bodiesinsulted and mocked, forced to stand in the sun naked, or stripped andsexually assaulted. 49The Medical Foundation for the Care of Victims of Torture also reportedthat one woman was raped repeatedly despite being pregnant. She wasreleased from detention when she suffered a miscarriage in her cell.Another women was detained with her young child who had suffered aserious head injury during their arrest. After a few weeks in detentionthey were released in the middle of the night. The child died three dayslater. 503.4 Threats against Women Human Rights DefendersMembers of the Christian’s Action for the Abolition of Torture (ACATCameroon, a member of the OMCT SOS-Torture network) in Doualacontinue to be under surveillance and constant pressure from the Stateauthorities. Their movements are monitored by individuals who watchthe front door of the organisation’s premises, and the telephone is stilltapped.Ms Madeleine Afite, Co-ordinator of ACAT Littoral, received anonymousphone calls at home and on her cell phone in 2002. In April of that year,she was held at the airport by a police officer who berated her for an hourand confiscated her papers to intimidate her. In the end the papers werereturned by another policeman, who told her in mocking tones to go andlodge a complaint wherever she liked. 51131

Violence Against Women: 10 Reports / Year 20034. Violence against Women in the FamilyMost violence against women takes place in the within the private sphere.State responsibility arising out of acts by private individuals lies at theheart of the gender-interpretation of the Convention against Torture. Agrowing body of international human rights law has recognised Stateresponsibility for private acts when the state fails to exercise due diligencein preventing, investigating, prosecuting, punishing and repairing humanrights violations. While it is obvious that not all violence against womencan be qualified as torture within the meaning of the Convention againstTorture, the mere fact that the perpetrator is a private individual ratherthan a state official should not automatically lead to the exclusion of theviolence from the scope of the Convention against Torture as according toits article 1, torture means not only acts of sever pain and suffering by thea public official, but also at the instigation of or with the consent or acquiescenceof a public official or other person acting in the official capacity.Depending on the severity of the violence and the circumstances givingrise to State responsibility, OMCT believes that violence against womenperpetrated by private individuals can constitute a form of torture or cruel,inhuman or degrading treatment.4.1 Woman BatteringAlthough there are no reliable statistics on domestic violence againstwomen in Cameroon, reports indicate that it is a widespread problem inthe country.OMCT is gravely concerned by the lack of measures taken by the governmentto eliminate domestic violence against women, which is still regardedas culturally acceptable by certain sectors of society. The Governmenthas failed to take decisive action to combat the problem, such as passinglegislation specifically prohibiting domestic violence abuse or trainingofficials so that they understand the complexities of issues surroundingthis type of abuse. OMCT also notes with concern that the governmenthas not initiated any awareness raising campaign in order to eliminate ofdomestic violence against women.As there is no special law dealing with domestic violence, victims of thistype of violence have to file a complaint under the assault provisions of132

Cameroonthe Penal Code. However, the Penal Code negates the specific circumstancesand needs that are involved in violence between domestic inmates.In fact, domestic violence continues to be seen as a private matter by thelaw enforcement officials.It has been reported that domestic violence is encouraged by judges’acceptance of the principle that a man has “disciplinary rights” over hiswife. This principle can come into play due to a wife’s refusal to havesexual intercourse with her husband or due to his alcoholism. 52 Moreover,as has been mentioned above, since husbands pay a “bride price” for theirwives, its is difficult for women to divorce from their husbands, even incases of domestic violence.4.2 Marital RapeIt is not clear whether marital rape is considered a crime or not, since thedoctrine is divided in to two camps and the courts are careful not to take adecision in favour of either side. 53 However, it seems to be culturallyaccepted that consent to marriage constitutes consent to each request ofsexual intercourse.4.3 Female Genital Mutilation (FGM)The practice of female genital mutilation constitutes a serious offenceagainst the physical and psychological integrity of the girl child. Thispractice, which mainly affects young girls, still exists in some regions ofCameroon, especially in the extreme north, the south-west and the northwestof the country where the practice is said to affect 100% of Muslimgirls and 63.6% of Christian girls. 54 According to the WHO and UNFPA,up to 20% of all women in Cameroon undergo the practice of female genitalmutilation (FGM).Reportedly, the following three forms of FGM occur in Cameroon: clitoridectomy;excision; and the most severe form, infibulation. The leastextreme form, clitoridectomy, consists of removal of the clitoris, to varyingdegrees. The second type, excision, consists of clitoridectomy togetherwith partial or total removal of the labia minora. Finally, the mostextreme form, infibulation, involves the removal of the entire clitoris and133

Violence Against Women: 10 Reports / Year 2003the labia minora, as well as at least two thirds of the labia majora. Most ofthe cases constitute genital mutilation of young girls between the ages of6 and 8 years old. FGM is often performed without anaesthesia undernon-hygienic conditions by untrained practitioners and sometimes leadsto fatal or serious health complications. 55Mbia Brokie, a woman from Akwaya village who has herself been circumcised,states: “A woman who is not mutilated is regarded as a pariahand is rejected by society.” 56 It must be stated that in many cases thewomen themselves are supporting the continuation of female genitalmutilation. Women regard female genital mutilation as a misfortune towhich they have to inevitably succumb.In 1999, the Human Rights Committee expressed its concern “at the factthat there is no specific law to prohibit female genital mutilation and thatthis practice continues in certain areas of Cameroon territory in violationof article 7 of the Covenant.” 57 In its conclusions it recommended that theState set up a policy of eradication of female genital mutilation.Cameroon launched a campaign in the regions where the problem wasmost serious, but the Committee on Economic Social and Cultural Rightsestimated that these measures were insufficient and inadequate. 58 Alsothe Committee on the Elimination of All Forms of Discrimination AgainstWomen noted in the year 2000 with concern that, despite some efforts,there is no holistic approach to the prevention and the elimination offemale genital mutilation. 59OMCT welcomes growing opposition to FGM from members of the civilsociety and from national and international NGOs. Although the governmentsupports the activities of the NGOs, it has still not adopted an effectiveand adequate policy or project to stop FGM. OMCT is particularlyconcerned by the fact that there is no law specifically prohibiting femalegenital mutilation in Cameroon and no educational programmes.OMCT would like to note that Professor Kooijmans, the first SpecialRapporteur on torture, argued in 1986, that “the authorities’ passive attituderegarding customs broadly accepted in a number of countries (i.e.sexual mutilation and other tribal traditional practices) might be consideredas ‘consent and acquiescence’ particularly when these practices arenot prosecuted as criminal offences under domestic law, probably becausethe State itself is abandoning its function of protecting its citizens fromany kind of torture.” 60134

Cameroon5. Violence Against Women in the Community5.1 RapeRape is punishable under article 296 of the Penal Code and punishable bya term of five to ten years imprisonment and is defined as “Whoever byforce or moral ascendancy compels any female whether above or belowthe age of puberty to have sexual intercourse with him.”Article 297 of the Penal Code deals with subsequent marriage and providesthat “Marriage freely consented between the offender and the victimif over puberty at the time of commission shall have on any offence undereither of the two last forgoing sections the effect of section 73 (1) to (4) ofthis Code”. Article 73(1) to (4) of the Penal Code deals with amnesty; inother words, the rapist will be exonerated when he marries the rape victim.OMCT is gravely concerned about the exemption from punishment of therapist when he marries the victim, as it allows the rapist’s criminal responsibilityto be extinguished, thus treating rape as a crime distinguishedfrom other crimes against a person, and it undermines the woman’s freeand full consent to marriage since she is often put under pressure in orderto save her and the family’s “honour”.5.2 Trafficking and Exploitation of Prostitution of WomenDue to its geographic location within the sub-region, Cameroon is a centrefor international trafficking, serving as a country of source, transit anddestination, 61 but trafficking also occurs within the country. Contributingfactors are traditions, cultural values and poverty. An important social traditionis the practice of placement, which is a tool of community help andsocial promotion. Poor family members would send their children to livewith wealthy family members or with other families who lived in the city.In exchange for an education or money sent back to the family the childrenare expected to provide various services to the foster family. Thisintra-family help system is used by traffickers for creating networks oftrafficking. The Cameroonian people also have ancient migration traditions,which make it easy for traffickers to hide themselves and their135

Violence Against Women: 10 Reports / Year 2003victims in the large population flows. Additionally, women and childrenare perceived as objects owned by the male members of the family, inwide ranges of society. In order to escape poverty, young and uneducatedCameroonians especially seek to go abroad and are easy prey for traffickers.62 5.2.1 Cameroonian and International Laws Dealing withTraffickingAccording to Article 293 (1) of the Penal Code “(a) Any person whoreduces a person to or maintains a person in slavery, or (b) engages, evenoccasionally, in trafficking in human beings, shall be punished withimprisonment of ten to twenty years.”Moreover, procuring is criminalized under article 294 which provides that“(1) Any person who causes, aids, or facilitates the prostitution of anotherindividual or who shares, even occasionally, in the proceeds of the prostitutionof another individual or receives subsidies from a person engagingin prostitution shall be punished with imprisonment of six months to fiveyears and fine of 20.000 (US$ 34.24) to 1.000.000 francs (US$ 1712.21).(2) Any person who lives with an individual engaging in prostitution andwho cannot provide proof of sufficient resources to enable him to providefor his own needs shall be presumed to be receiving subsidies.”Also prostitution is a punishable offence. Article 343 states, “(1) Any personof either sex who habitually engages, for compensation, in sexual actswith others, shall be punished with imprisonment for six months to fiveyears and a fine of 20.000 (US$ 34.24) to 500.000 (US$ 856.11) francs(2) Any person who publicly recruits individuals of either sex throughgestures, words, writings or any other means, for purposes of prostitutionor debauchery shall be punished with the same penalties.”Additionally, Article 292 criminalizes forced labour. It states that “anyperson, who in order to satisfy his personal interests, imposes on anotherperson any work or service obligation for which that person has not freelyapplied shall be punished with imprisonment of five to ten years and/or afine of 10.000 (US$ 17.12) to 500.000 (US$ 856.11) francs.”Cameroon has ratified the ILO Convention on the Abolition of ForcedLabour and the UN Supplementary Convention on the Abolition of136

CameroonSlavery, the Slave Trade, and Institutions and Practices Similar to Slavery.Cameroon signed the UN Protocol to Prevent, Suppress and PunishTrafficking in Persons, especially women and children, adopted by resolutionA/Res/55/25, on 13 December 2000, but as of 09 October, 2003 hadnot ratified it.OMCT notes with concern that it is the prostitute who is punished ratherthan the client who goes free. As many prostitutes do not prostitute themselvesof their free will, they are doubly victimised through these punishments.5.2.2 Trafficking for labour and sexual exploitationHuman trafficking, especially trafficking in children is widespread inCameroon. Children are usually trafficked for labour purposes and sexualexploitation internally, to and from neighbouring countries, but also toEurope and the US. An ILO study revealed that trafficking accountedfor 83% of child labourers. 63 There are reports from the northwestCameroonian town of Bafoussam that indicate that trafficking is a business,with the girls regarded as just another product to be bought andsold for thousands of dollars. 64 However, it is difficult to deal withthe issue since children and parents are reluctant to come forward out offear.According to the National Commission on Human Rights and Freedoms(NCHRF) there are reports of farm-to-city trafficking of girls, who werepromised jobs in the city, but instead were forced into prostitution or otherlabour. 65 Furthermore, it is reported that Cameroonian nationals livingabroad – mainly in the US – enslave Cameroonian children and teenagersafter making false promises of education and care. 66 Reports also indicatethat women are being trafficked for prostitution to European countries,including France and Switzerland. 67In one case, a poor family gave one of their daughters to the girl’s aunt,who claimed she was living in France. However, she was running a smallbar in Benin, where she exploited the girl, using her as a waitress andplacing her in prostitution. 68 In another case, a girl who wanted to escapean abusive marriage was offered a job in a London restaurant, but whenshe arrived she was forced to work in a brothel. 69137

Violence Against Women: 10 Reports / Year 2003OMCT welcomes the commitment by the Cameroonian Governmentto engage in legislative and policy-based activities for the preventionof trafficking and for the provision of assistance to victims of trafficking.The government is currently participating in a two-part ILO traffickingproject with Benin, Burkino Faso, Cote D’Ivoire, Ghana, Mali,Nigeria, Senegal and Togo and is working with Equatorial Guinea,the Central African Republic, Gabon, Chad, and Congo-Brazzaville todevelop a sub-regional instrument to govern anti-trafficking actionson border control, extradition, and penalties. There are also plans toimplement an anti-trafficking training for the police in late 2003. Thegovernment has also started to provide shelter and medical care to traffickingvictims. Nevertheless, much work still needs to be done, especiallyin terms of effectively punishing traffickers. Prosecution remainsmarginal. 706. Sexual and Reproductive Rights: Abortion PolicyAbortion is forbidden in Cameroon (art. 337 of the Penal Code). Thereare two exceptions to this rule laid down under article 339 of the PenalCode: when a woman becomes pregnant after rape or when the woman’shealth is in great danger because of the pregnancy. Anyone performing anillegal abortion is subject to one to five years’ imprisonment and a fine of100,000 to 2 million CFA francs. A woman who procures or consents toher own abortion is subject to imprisonment for fifteen days to one yearand/or a fine of 5,000 to 200,000 CFA francs. Penalties applied to medicalprofessionals who perform illegal abortions shall be doubled and theymay be prohibited from carrying out their obligations or be subject tohaving their professional premises closed.The UN Human Rights Committee stated in 1999, in its concludingobservations concerning the human rights situation in Cameroon, that:“The Committee is concerned that the criminalization of abortion leads tounsafe abortions which account for a high rate of maternal mortality.” 71According to the World Bank, the maternal mortality rate in 1999 was at430 for 100.000 living births. 72 The Human Rights Committee stated furtherthat “The State Party must take measures to protect the life of all persons,including pregnant women.” 73138

CameroonAlthough exact numbers of abortions are not available, abortions areknown to be commonplace in Cameroon. A 1991 showed that 40% of allurgent gynaecological operations were linked to abortions. 74 Clandestineabortions are extremely frequent. The complications resulting from clandestineabortions carried out by non-professionals constitute a seriousproblem in Cameroon, particularly among adolescents and among marriedwomen whose husbands forbid them to use contraception. Because of alack of medical knowledge and the carelessness of the person performingthe abortion, the procedure is life threatening and there is a high risk ofHIV-infection.A national population policy was adopted by the Government in 1992 andan information and education programme on the benefits of responsibleparenthood is being implemented. However, obstacles to an increase incontraceptive prevalence include pro-natalist attitudes, poor communicationinfrastructure in some areas of the country and insufficient familyplanning facilities. 757. Conclusions and RecommendationsOMCT is concerned about reports of the poor human rights situation inCameroon which is especially detrimental to the most vulnerable groupsof society, such as women. Although the Cameroonian Constitutionappears to be based on gender-equality, OMCT observes the persistenceof gender-discriminatory provisions in several laws and the discriminatorycustomary law, as well as the prejudices and stereotypical attitudes concerningthe role of women and men in the family and society. These rolesare based on the notion of the superiority of men and the subordination ofwomen. The low socio-economic status of women, which is partly manifestedby the high illiteracy rate among women and low representation ofwomen in politics, leaves women more vulnerable to violence at the publicand private levels in Cameroon.OMCT is extremely concerned about the persisting reports of torture andill-treatment of prisoners by state officials, arbitrary arrests and detention,and extra-judicial killings and the impunity with which these humanrights violations are met.139

Violence Against Women: 10 Reports / Year 2003Women in detention centres are particularly subjected to gender-specificforms of torture such as rape and sexual harassment by both prison guardsand other inmates. In this regard, OMCT is concerned about reports thatwomen and men are detained in the same cells, which contributes to theunderlying sexual violence against women in detention. When the methodof torture consists of rape or sexual assault, it is less likely that the victimwill complain out of fear and shame, thus leading to the negation of thisviolation and the impunity of the torturer.Moreover, OMCT is gravely concerned about the reports of womenhuman rights defenders who are threatened because of their human rightsactivities.OMCT would insist that the physical and psychological integrity of thepeople in Cameroon be guaranteed by putting an end to torture and inhuman,cruel and degrading treatment and punishment, extra-judicialkillings, arbitrary arrest and detention as well as the high level of impunity.OMCT would urge the government to guarantee an impartial andexhaustive inquiry into such events, identify those responsible, bring thembefore a competent and impartial civil tribunal and apply the penal, civiland/or administrative sanctions provided by law.Moreover, OMCT would strongly recommend that Cameroon strengthenthe prevention, investigation and punishment of human rights abusesagainst women in the private and public sphere and it would call for gender-disaggregatedinformation on torture and other cruel, inhuman ordegrading treatment or punishment.OMCT would urge the government of Cameroon to ensure in all circumstancesrespect for human rights and fundamental freedoms in accordancewith national laws and international human rights standards. It would urgethe implementation of the Standard Minimum Rule for the Treatment ofPrisoners, the Body of Principles for the Protection of All Persons underAny Form of Detention or Imprisonment, the Principles on the EffectivePrevention and Investigation of Extra-Legal, Arbitrary and SummaryExecutions, the Basic Principles for the Treatment of Prisoners, as theyset fundamental rules and safeguards protecting arrested and detained personsfrom being subjected to torture and other cruel, inhuman or degradingtreatment or punishment.140

CameroonOMCT would call upon Cameroon to take steps to address the inequalityof and discrimination against women both in law and reality. OMCTwould urge Cameroon to prohibit customs and practices which violate therights of women and to take active measures to combat such laws andpractices by all means. Government action should especially focus on theelimination of polygamy, early and forced marriages, the practice of brideprices, and female genital mutilation.OMCT regrets the lack of measures taken to eliminate domestic violenceagainst women, which is still considered as culturally acceptable by certainsectors of society. OMCT is further concerned by the lack of clarificationon the part of the legislation and the judiciary as to whether maritalrape is criminalized.OMCT would recommend that the government of Cameroon enhance itsstrategies and programmes aimed at combating domestic violence, includingmarital rape. In this regard, OMCT would urge Cameroon to enactspecial legislation on domestic violence along the lines of the guidelinessubmitted by the United Nations Special Rapporteur on violence againstwomen to the fifty-second session of the United Nations Commission onHuman Rights (U.N. doc. E/CN/.4/1996/53, Add.2), to criminalize maritalrape, establish mechanisms to identify incest and prosecute perpetrators,and also to combat this problem through awareness-raisingcampaigns and educational programmes.OMCT is also gravely concerned by the fact that no specific law is enactedto prohibit female genital mutilation and that this practice continues incertain areas of Cameroon. OMCT would recommend that Cameroontakes all measures, including legislation and educational programmes, tocombat and eradicate the practice of female genital mutilation.With regard to rape, OMCT is concerned about the fact that a rapist canbe exonerated of his criminal responsibility by marrying the victim.OMCT would recommend that the authorities repeal the provision of thePenal Code that allows a man who rapes a woman to avoid prosecution ifhe marries her.OMCT expresses grave concern about the exploitation of prostitution ofwomen and trafficking of women and children. OMCT commends thegovernment’s commitment in legislative and policy-based activities for141

Violence Against Women: 10 Reports / Year 2003the prevention of trafficking and for the provision of assistance to victimsof trafficking. However, it notes at the same time with concern that traffickingand the exploitation of prostitution continues to happen with virtualimpunity. Prostitutes themselves are on the other hand at risk of beingarrested and detained.OMCT urges the Government to ratify the Protocol to Prevent, Suppressand Punish Trafficking in Persons, Especially Women and ChildrenSupplementing the UN Convention against Transnational OrganizedCrime. OMCT would also urge the government of Cameroon to assurethat programmes are established to alleviate poverty so that women andgirls do not have to resort to prostitution, to reintegrate prostitutes intosociety and to raise awareness and prevent such exploitation, instead ofdoubly victimising prostitutes by prosecuting and punishing them forprostitution.OMCT also expresses concern about the criminalisation of abortionwhich leads to unsafe abortions that account for a high rate of maternalmortality. OMCT would urge the government of Cameroon to review itsabortion laws and to develop programmes to protect mothers and children.Finally, OMCT would strongly insist on the need to implement all provisionsof the Convention on the Elimination of All Forms ofDiscrimination against Women, the Beijing Rules and Platform for Actionand the Declaration on the Elimination of Violence Against Women, asthey are the most relevant international instruments concerned with allforms of violence against women.1 Vienna Declaration and Platform for Action, UN Doc. A/CONF.157/23, Part II,para 42.2 Beijing Declarartion and Platform for Action, Fourth World Conference onWomen, UN Doc. A/CONF.177/20, Annex II, para 222.3 UN Doc. CCPR/C/21/Rev.1/Add.10.142

Cameroon4 UN Committee against Torture, Summary Record of the 448th meeting:Cameroon, 23/11/2000, UN Doc. CAT/C/SR.448, para 37.5 Concluding Observations of the Committee on Economic, Social and CulturalRights, UN Doc. E/C.12/1/Add.40.6 Three main cultural groups can be distinguished, “the Bantu, in the South, Littoral,South-West, Centre and South-East provinces; the Bantoid or semi-Bantu, in theWest and North provinces; and the Sudanese, in the Adamaoua, North and farNorth provinces. The pygmy population, which is not included in these largegroups, lives in the South, East and Centre provinces” quoted in: All Treaty-BasedCommittees’ core document on Cameroon, UN Doc. HR/CORE/1/Add.109, June2000.7 Project IDEEELS. MUNO Profile – Cameroon, www.ideels.uni-bremen.de.8 Medical Foundation for the Care of Victims of Torture, “Every morning, just likecoffee,” Torture in Cameroon, 2002; US Department of State, Reports on HumanRights Practices for Cameroon, 1998, 1999, 2000.9 United Nations Development Programme, Human Development Reports 2003,available at www.undp.org/hdr2003/indicatory/cty_f_CMR.html.10 Ibid.11 UN Committee against Torture, Summary Record of the 448th meeting:Cameroon, 23/11/2000, UN Doc. CAT/C/SR.448, para 11.12 Ibid., para. 14.13 Ibid., para. 26.14 Concluding Observations of the Committee Against Torture: Cameroon,06/12/2000, UN Doc. A/56/44, para. 65 a-d.15 Center for Reproductive Rights, Women of the World: Laws and Policies AffectingTheir Reproductive Lives - Francophone Africa, 2000, p. 70.16 UK Home Office, Country Assessment of Cameroon, 2001.17 Order CS No.28 /CC of December 1981, No.35/Ccof November 25, 1982 (citedin: Center for Reproductive Rights, Women of the World, Ibid., p. 69).18 Ibid., p. 70.19 Afro Gender Profiles, available at www.Afrol.com.20 E.g. Committee on Economic, Social and Cultural Rights, ConcludingObservations 1999, UN Doc. E/C.12/1/Add.40 paras 13 and 14. and theCommittee on the Elimination of All Forms of Discrimination against Women,Concluding Observations, UN Doc. A/55/38 paras. 45 and 53.21 Article 1428 of the Civil Code.22 Center for Reproductive Rights, Women of the World, Ibid., p. 80.23 Afro Gender Profiles, available at www.Afrol.com.24 Center for Reproductive Rights, Women of the World, Ibid., p. 80.25 The Civil Code does not discuss polygamy, nor does it polyandry. The legal statusof polygamy must be interpreted or deduced from Order 81/02 of 6/29/81 and thePenal Code. This interpretation makes it evident that polyandry, which allows awoman to have several husbands, is prohibited, whereas polygamy, which allowsa man to have several wives, is permitted. Also the Supreme Court ruled in this143

Violence Against Women: 10 Reports / Year 2003manner, (CS order ASSO an others) (cited in Center for Reproductive Rights,Women of the World, Ibid., p. 79).26 Committee on the Elimination of Discrimination against Women, GeneralRecommendation No 20, UN Doc. HRI/GEN/1/Rev.3.27 Panafrica News Agency, Levée des Boucliers au Nord contre les marriages précoses,20 April 2001.28 Afro Gender Profiles, available at www.Afrol.com.29 It should be noticed that a dowry is not a condition of the validity of the marriage.30 Association Camerounaise des Femmes Juristes, Women’s Reproductive Rights inCameroon, p. 10.31 UNICEF, At a glance: Cameroon – The big picture, available atwww.unicef.org/infobycountry/cameroon.html.32 UNICEF, At a glance: Cameroon – Statistics, available at www.unicef.org/infobycountry/cameroon_statistics.html33 Ibid.34 Ibid.35 Inter-Parliamentary Union, available at www.iup.org.36 Law No 97/009 of 9 January 1997.37 Unofficial translation.38 Decree No.92/052.39 Case CMR 080501.1, Follow-up to Case CMR 080501.1.40 Case CMR 081001.41 Case CMR 151002.42 Case CMR 191200.43 Medical Foundation for the Care of Victims of Torture, Ibid., p. 8.44 Concluding Observations of the Committee Against Torture: Cameroon,06/12/2000, UN Doc. A/56/44, para. 65.45 UK Home Office, Country Assessment of Cameroon, 2002 (cited in MedicalFoundation for the Care of Victims of Torture), Ibid., p. 9.46 Transparency International, http://www.transparency.org/cpi/2003/ cpi2003.en.html, The CPI 2003 score relates to perceptions of the degree of corruption asseen by business people, academics and risk analysts, and ranges between 10(highly clean) and 0 (highly corrupt). Cameroon’s CPI score is: 1.8.47 Report of the Special Rapporteur on Torture, Visit to Cameroon, UN Doc.E/CN.4/2000/9/Add.2, para 54.48 Medical Foundation for the Care of Victims of Torture, Ibid., p. 12.49 Ibid., p. 32-34.50 Ibid., p. 37.51 The Observatory for the Protection of Human Rights Defenders – OMCT andFIDH, Human Rights Defenders on the Front Line, Annual Report 2002, pp. 40-41.52 Association Camerounaise des Femmes Juristes, Women’s Reproductive Rights inCameroon, p. 14.144

Cameroon53 Center for Reproductive Rights, Ibid., p. 81.54 Inter-Parliamentary Union, available at www.iup.org.55 Association Camerounaise des Femmes Juristes, Women’s Reproductive Rights inCameroon, p. 13.56 ANB-BIA SUPPLEMENT: Cameroon, Yesterday’s traditions — today’s blasphemy,Edition Nr. 388, 15/04/2000, available at http://www.peacelink.it/anbbia/nr388/e04.html.57 Conclusions of the Human Rights Committee on the report of Cameroon, UNDoc. HR/CT/99/48, 28 October 1999.58 Conclusions of the Committee on Economic, Social and Cultural Rights, UN Doc.HR/ESC/99/48, 3 December 1999.59 Concluding Observations of the Committee on the Elimination of DiscriminationAgainst Women : Cameroon. 26/06/2000, UN Doc. A/55/38, para. 49.60 UN Doc. E/CN.4/1986/15, para. 38.61 ILO Report 2001, Combating Trafficking in Children for Labour Exploitation inWest and Central Africa, p. 21.62 The Protection Project, March 2002, A Human Rights Report on Trafficking ofPersons, Especially Women and Children-Cameroon.63 Quoted in the US Department of State, Country Reports on Human RightsPractices 2002.64 BBC News, 8 July 2003.65 NCHRF, cited on www.afrol.com/Categories/Women/profiles/cameroon_women.htm.66 The Protection Project, March 2002, Ibid.67 US Department of State, Trafficking in Persons Report, June 2003.68 The Protection Project, March 2002, Ibid.69 BBC News, 8 July,2003.70 US Department of State, Trafficking in Persons Report, June 2003.71 U.N. Doc. CCPR/C/79/Add.116, para. 13.72 World Bank, Cameroon, Gender Profile, available athttp://www.worldbank.org/afr/gender/cameroon.pdf.73 UN Doc. CCPR/C/79/Add.116, para. 13.74 Quoted in Center for Reproductive Right, Ibid., p. 76.75 United Nations Population DivisionDepartment of Economic and Social Affairs,Abortion Policies, available at http://www.un.org/esa/population/publications/abortion/doc/camero1.doc.145

Violence Against Women: 10 Reports / Year 2003Committee against TortureTHIRTY-FIRST SESSION – 10-21 NOVEMBER 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 19 OF THE CONVENTIONCONCLUDING OBSERVATIONS BY THE COMMITTEE AGAINST TORTURE:CAMEROON1. The Committee considered the third periodic report of Cameroon(CAT/C/34/Add.17) at its 585th, 588th and 590th meetings, held on18, 19 and 20 November 2003 (CAT/C/SR.585, 588 and 590), andadopted the following conclusions and recommendations.A. Introduction2. The Committee welcomes the third report of Cameroon, which wasprepared in conformity with the Committee’s guidelines and containsresponses to the Committee’s previous recommendations. It neverthelessnotes that the report, which was submitted at the end of 2002, coversonly the period 1996-2000. The Committee welcomes thepresence of a delegation of high-level experts to reply to the manyquestions put to them.B. Positive aspects3. The Committee takes note with satisfaction of the following:(a) The State party’s efforts to pass legislation to give effect to theConvention;146

Cameroon(b) The dissolution, in 2001, of the Douala operational commandresponsible for combating highway robbery, as recommended bythe Committee;(c) The increase in the number of police officers, in conformity withthe Committee’s recommendation;(d) The plan to build additional prisons in order to remedy prison overcrowding,and the collective pardon granted in November 2002enabling 1,757 detainees to be immediately released;(e) The assurance given by the delegation that the verification of theindividual situations of detainees and appellants will eventuallyresult in the release of the range of persons held in pre-trial detention,notably juveniles, women and sick persons;(f) The proposed restructuring of the National Committee on HumanRights and Freedoms to make it more independent of the executiveand give it greater prominence.(g) The current finalization of a law against violence against women;(h) The establishment of the Ad Hoc Technical Committee forImplementation of the Rome Statute of the International CriminalCourt, with a view to ratification of that Statute;(i) The establishment of nine new courts in 2001.C. Subjects of concern4. The Committee recalls that, in 2000, it found that torture seemed to bea very widespread practice in Cameroon, and expresses concern atreports that this situation still exists. It is troubled by the sharp contradictionsbetween consistent allegations of serious violations of theConvention and the information provided by the State party. In particular,the Committee declares serious concern about:(a) Reports of the systematic use of torture in police and gendarmeriestations after arrest;147

Violence Against Women: 10 Reports / Year 2003(b) The continued existence of extreme overcrowding in Cameroonianprisons, in which living and hygiene conditions would appear toendanger the health and lives of prisoners and are tantamount toinhuman and degrading treatment. Medical care reportedly has tobe paid for, and the separation of men and women is not alwaysensured in practice. The Committee notes with particular concernthe large number of deaths at Douala central prison since thebeginning of the year (25 according to the State party, 72 accordingto non-governmental organizations);(c) Reports of torture, ill-treatment and arbitrary detention perpetratedunder the responsibility of certain traditional chiefs, sometimeswith the support of the forces of law and order.5. The Committee notes with concern that:(a) The draft code of criminal procedure has still not been adopted;(b) The period of police custody may, under the draft code of criminalprocedure, be extended by 24 hours for every 50 kilometres of distancebetween the place of arrest and the place of custody;(c) The time limits on custody are reportedly not respected in practice;(d) The periods of police custody under Act No. 90/054 of 19December 1990 to combat highway robbery (15 days, renewable)and Act No. 90/047 of 19 December 1990 on states of emergency(up to 2 months, renewable) are too long;(e) The use of registers in all places of detention has not yet been systematicallyorganized;(f) There is no legal provision establishing the maximum duration ofpre-trial detention;(g) The system of supervision of places of detention is not effective,responsibility for prison administration lies with the Ministry ofTerritorial Administration. The prison supervisory commissionshave been unable to meet regularly and, according to some reports,public prosecutors and the National Committee on Human Rightsand Freedoms seldom visit places of detention;148

Cameroon(h) The concept of a “manifestly illegal order” lacks precision and isliable to restrict the scope of application of article 2, paragraph 3,of the Convention;(i) Appeals to the competent administrative court against deportationorders are not suspensive, and this may lead to a violation of article3 of the Convention.6. The Committee, while welcoming the effort made by the State party totransmit information relating to the prosecution of State officialsresponsible for violations of human rights, is concerned about reportsof the impunity of perpetrators of acts of torture. It is particularly worriedabout:(a) The fact that gendarmes can be prosecuted for offences committedin the line of duty only with the authorization of the Ministry ofDefence;(b) Reports that proceedings have actually been initiated against perpetratorsof torture only in cases where the death of the victim wasfollowed by public demonstrations;(c) The fact that the case of the “Bépanda nine” remains unsolved;(d) The reluctance of victims or their relatives to lodge complaints,through ignorance, distrust or fear of reprisals;(e) Reports that evidence obtained through torture is admissible in thecourts.7. The Committee is also concerned about:(a) The jurisdiction given to military courts to try civilians for offencesagainst the laws on military weapons and weapons assimilatedthereto;(b) The absence of legislation banning female genital mutilation;(c) The fact that the Criminal Code permits the exemption from punishmentof a rapist if he subsequently marries the victim.149

Violence Against Women: 10 Reports / Year 2003D. Recommendations8. The Committee urges the State party to take all necessary measures toend the practice of torture on its territory. It recommends that theState party should:(a) Immediately end torture in police and gendarmerie stations andprisons. It should ensure effective supervision of these places ofdetention, permit NGOs to visit them and give more authority tothe prison supervision commissions. The National Committee onHuman Rights and Freedoms and public prosecutors should paymore frequent visits to all places of detention;(b) Immediately launch an independent investigation into the deaths atDouala central prison since the beginning of the year and bringthose responsible to justice;(c) Adopt urgent measures to reduce overcrowding in prisons. TheState party should enact a law establishing the maximum durationof pre-trial detention, and consider immediately releasing offendersor suspects imprisoned for the first time for petty offences, particularlyif they are under 18 years of age; such persons should not beimprisoned until the problem of prison overcrowding has beensolved;(d) Guarantee free medical care in prisons, ensure the right of prisonersto adequate food in practice, and effectively separate men andwomen;(e) Immediately end the torture, ill-treatment and arbitrary detentionperpetrated under the responsibility of the traditional chiefs in thenorth. The Committee notes the delegation’s assurance that proceedingshave been brought in such cases and urges the State partyto step up its efforts in this direction. The peoples concernedshould be duly informed of their rights and of the limits on theauthority and powers of these traditional chiefs.9. The Committee further recommends that the State party should:(a) Adopt, as a matter of great urgency, and ensure the effective implementationof a law establishing the right of all persons held in150

Cameroonpolice custody, during the initial hours of detention, of access to alawyer of their choice and an independent doctor, and to informtheir relatives of their detention. The Committee remarks that anyextension of detention in custody ought to be approved by a judge;(b) Abandon the notion, in its draft code of criminal procedure, ofextending the period of police custody depending on the distancebetween the place of arrest and the place of custody, and ensureobservance of the time limits on custody in practice;(c) Ensure that detention in custody under the Act on states of emergencyconforms to international human rights standards and is notprolonged beyond what the situation requires. The State partyshould abolish administrative and military custody as options;(d) Systematically organize, as a matter of great urgency, the use ofregisters in all places of detention;(e) Separate the police from the prison authorities, e.g. by transferringresponsibility for prison administration to the Ministry of Justice;(f) Clarify the concept of a “manifestly illegal order”, so that Stateemployees, in particular police officers, members of the armedforces, prison guards, magistrates and lawyers, are clearly aware ofthe implications. Specific training on this point should be offered;(g) Allow appeals by foreigners against decisions by the administrativecourt to confirm deportation orders to stay execution.10.The Committee recommends that the State should greatly increase itsefforts to end the impunity of perpetrators of acts of torture, in particularby:(a) Removing all restrictions, notably by the Ministry of Defence, onthe prosecution of gendarmes and by giving the ordinary courtsjurisdiction to try offences committed by gendarmes in the line ofpolicy duty;(b) Pursuing its inquiry into the case of the “Bépanda nine”. TheCommittee also recommends a thorough investigation of the activitiesof the Douala operational command while it was in operation151

Violence Against Women: 10 Reports / Year 2003and, by extension, the activities of all anti-gang units that are stillfunctioning;(c) Ensuring that its authorities immediately undertake an impartialinvestigation whenever there is reasonable ground to believe thatan act of torture has been committed. The Committee recommendsan independent body with the authority to receive and investigateall allegations of torture and other ill-treatment at the hands ofState employees;(d) Ensuring the protection of victims and witnesses against any intimidationor ill-treatment, and by informing the public of their rights,notably with regard to complaints against State employees;(e) Adopting, as soon as possible, and ensuring the practical enforcementof a law making evidence obtained under torture inadmissiblein all proceedings.11.The Committee further recommends that the Cameroonian authoritiesshould:(a) Reform the National Committee on Human Rights and Freedomswith a view to closer conformity to the Principles relating to thestatus of national institutions for the promotion and protection ofhuman rights (the “Paris Principles”);(b) Restrict the jurisdiction of the military courts to military offencesonly;(c) Enact a law banning female genital mutilation;(d) Revise its legislation to end the exemption from punishment ofrapists who marry their victims;(e) Consider ratifying the Optional Protocol to the Convention againstTorture.12.The Committee recommends that the present conclusions and recommendations,together with the summary records of the meetings devotedto consideration of the third periodic report of the State party,should be widely disseminated in the country in the appropriate languages.152

Cameroon13.The Committee recommends the inclusion in the next periodic reportof detailed information on the current minimum safeguards governingcourt supervision and the rights of individuals in custody, and on howthey apply in practice.14.The Committee requests the State party to provide, within one year,information on its response to the Committee’s recommendations containedin paragraphs 8 (b) and (c), 9 (c) and (d) and 10 (a) above. Itwishes in particular to be given information about any prosecutions oftraditional chiefs, on what charges, and the sentences handed down. Italso looks forward to a detailed account of the situation at Douala centralprison.153

Violence against Women in ColombiaA Report to the Committee against TortureContents1. Preliminary Observations .............................................................................................................................. 1571.1 Colombia’s International and Domestic Obligations ............................. 1571.2 General Observations on the Human Rights Situation ........................ 1592. General Status of Women ............................................................................................................................ 1643. Violence against Women Perpetrated by the Stateand Armed Groups .................................................................................................................................................... 1663.1 Violence against Women Human Rights Defenders ................................ 1673.2 Child Soldiers ............................................................................................................................................... 1694. Internally Displaced Women ................................................................................................................... 1705. Violence against Women in the Family ...................................................................................... 1715.1 Domestic Violence ................................................................................................................................... 1715.2 Marital Rape ..................................................................................................................................................... 1756. Violence Against Women in the Community ...................................................................... 1756.1 Rape and Sexual Violence ................................................................................................................ 1756.2 Trafficking .......................................................................................................................................................... 1767. Reproductive Rights .............................................................................................................................................. 1798. Conclusions and Recommendations ............................................................................................. 180Concluding observations of the Committee against Torture:ColombiaThirty-first session – 10-21 November 2003Consideration of Reports Submitted by States PartiesUnder Article 19 of the Convention ....................................................................................................... 189A. Introduction .......................................................................................................................................................... 189B. Positive aspects ................................................................................................................................................... 189C. Factors and difficulties impeding the applicationof the Convention ........................................................................................................................................... 191D. Subjects of concern .................................................................................................................................... 191E. Recommendations.............................................................................................................................................. 193155

Colombia1. Preliminary ObservationsThe submission of information specifically relating to violence againstwomen to the United Nations Committee against Torture forms part ofOMCT’s Violence against Women programme which focuses on integratinga gender perspective into the work of the five “mainstream” UnitedNations human rights treaty monitoring bodies.1.1 Colombia’s International and Domestic ObligationsColombia has ratified the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment without reservations (7January 1988). Despite the recommendation of the Committee AgainstTorture in 1999, Colombia has not made a declaration accepting the competenceof the Committee Against Torture to examine communicationsunder Article 21, para.1, relating to State Party claims that another StateParty is in non-compliance with the Convention, or communicationsunder Article 22, para.1, by individual victims of torture.Colombia is also a State party to most of the principal internationalhuman rights treaties including the International Covenant on Civil andPolitical Rights (ICCPR) and its two Optional Protocols, the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR), theInternational Convention on the Elimination of All Forms of RacialDiscrimination (CERD) and the Convention on the Rights of the Child(CRC). Colombia has also ratified without reservation the Convention onthe Elimination of All Forms of Discrimination against Women(CEDAW).OMCT notes that although Colombia signed the Optional Protocol toCEDAW on 10 December 1999, it has not ratified it and as a result,Colombia does not yet recognize the competence of the Committee on theElimination of Discrimination against Women to receive and act uponindividual communications or to undertake investigations in cases whereserious or systematic violations of the Convention are allegedly occurring.Further, considering the extent to which the current armed conflict inColombia is affecting children, OMCT notes with concern that whileColombia has signed the two Optional Protocols to the CRC on theInvolvement of Children in Armed Conflict and on the Sale of Children,157

Violence Against Women: 10 Reports / Year 2003Child Prostitution and Child Pornography, they have yet to be ratified.Colombia also does not recognise the competence of the Committee onthe Elimination of Racial Discrimination to entertain individual communications.On 5 August 2002, Colombia ratified the Rome Statute of theInternational Criminal Court. However, by invoking article 124 of theStatute, Colombia does not recognize the jurisdiction of the Court overwar crimes committed during a period of seven years following the dateof ratification. Thus the ICC’s jurisdiction over war crimes committed inColombia will not take effect until August 2009.At the regional level, Colombia has ratified several conventions relevantto the eradication of torture and other violence against women includingthe American Convention on Human Rights, the Inter-AmericanConvention to Prevent and Punish Torture and the Inter-AmericanConvention on the Prevention, Sanction and Eradication of ViolenceAgainst Women (the “Belem do Para Convention”). These treaties, takentogether, impose an obligation on Colombia to guarantee the enjoymentby women of their equal rights in the civil, political, social, economic andcultural realms as well as to protect women from discrimination of anykind and to protect them from gender specific forms of violence in thepublic and private spheres.Article 1 of the Inter-American Convention on the Prevention, Sanctionand Eradication of Violence against Women defines violence againstwomen to include “any act or conduct, based on gender, which causesdeath or physical, sexual or psychological harm or suffering to women,whether in the public or the private sphere.” Article 7 of the Conventionalso places specific obligations on States Parties “to prevent, punish anderadicate such violence.”Under Article 93 of the Constitution of Colombia (1991), internationalhuman rights treaties have the status of constitutional law and thus, takeprecedence over national law. 1 Article 93 further provides that the rightsand duties enumerated in the Constitution must be interpreted “in accordancewith international treaties on human rights ratified by Colombia.”Article 12 of the Constitution provides that “[n]o one shall be subjected toforced disappearance, nor subjected to torture or cruel, inhuman, or158

Colombiadegrading treatment or punishment.” Article 13 guarantees to all individualsequality before the law, equal treatment by authorities, and entitlement“to enjoy the same rights, freedoms, and opportunities without discriminationon the basis of gender, race, national or family origin, language,religion, political opinion, or philosophy.” This article further imposes anaffirmative obligation upon the state to “promote the conditions necessaryin order that equality may be real and effective.” Pursuant to Article 214,fundamental freedoms enumerated in the Constitution, Colombia’s humanrights obligations and obligations under international humanitarian lawcannot be derogated from in times of war or states of emergency. 21.2 General Observations on the Human Rights Situation inColombiaThe human rights situation in Colombia has deteriorated significantly inthe past two years in tandem with the intensification of the internal armedconflict between insurgents, paramilitaries and state security forces.Significant increases in the numbers of internally displaced persons(IDPs) most of whom are women and children, in the period 2002-2003reflect the extent to which the civilian population has been victimised bythe conflict. 3 UNHCR estimates the IDP population at 195,000 butobservers note that the true magnitude of this group may be as much as2,000,000. The intensification of the fighting as well as the state’s newsecurity policies and expanded powers under the state of emergencydeclared in August 2002, have resulted in increasingly widespread humanrights abuses and violations of international humanitarian law implicatingall parties to the conflict. According to the Office of the United NationsHigh Commissioner for Human Rights (UNHCHR) in Colombia, mostaffected have been the rights to life, physical integrity, freedom and dueprocess. 4 Persisting problems in the administration of justice includingimpunity, corruption and collusion of public officials with right-wingparamilitary organisations and, more generally, the lack of an effectiveand coherent policy on human rights and international humanitarian law 5all contributed to the deterioration of the human rights situation in 2003.Of particular concern is Colombia’s lack specific policies and effectiveaction to protect women from violations of their rights including sexualand gender based violence which is widespread in Colombia.159

Violence Against Women: 10 Reports / Year 2003Historically, Colombia has a long tradition of elected civilian rule uniquein Latin America. However, the often less than inclusive policies of theestablished political elites, exacerbated by deep societal divisions, dramaticeconomic disparities between rich and poor and associated socio-politicaldisenfranchisement, gave rise in the 1950s and 60s to alternativeforms of political mobilization, including armed insurgency. 6 Colombia’sinternal armed struggle thus traces its origins to the rise of left wing guerrillagroups some 40 years ago, some of which were inspired by theCuban revolution. Today, the Revolutionary Armed Forces of Colombia(FARC-EP 7 ), with as many as 15,000 fighters, and the NationalLiberation Army (ELN 8 ), estimated at about 7,000 fighters are two of themost prominent actors in the conflict. The 1980s and 90s also witnessedthe rise of right wing paramilitary organizations partly as a response bywealthy landowners to the threat posed by the guerrillas. The most prominentparamilitary organization is the United Self-Defence Groups ofColombia (AUC 9 ), which claims to have as many as 11,000 fighters, butobservers suspect this number has increased over the past year. While thehistorical roots of the current conflict may have had an ideological basis,today the political motivations of armed insurgents have been discreditedby their heavy involvement in a variety of lucrative criminal activitiesincluding drug trafficking, arms smuggling, abduction for ransom andextortion. 10 Many observers have characterised these activities, especiallythe illegal narcotics trade as both a cause and a consequence of today’scontinuing conflict. 11In early 2002, peace talks between the FARC, the ELN and the administrationof former president Andrés Pastrana broke down in the face ofcontinuing acts of violence by insurgents including several high profilekidnappings of political figures as well as increased operations by paramilitarygroups, which are sometimes tolerated by the higher echelons ofthe military. Pastrana’s ongoing contacts with the paramilitary group AUCsimilarly yielded no significant results. The demise of peace talks coincidedwith a pronounced increase in violence by armed insurgents includinga concerted effort on their part to disrupt legitimate political processesand destabilise the state through acts of terrorism, indiscriminate violenceand intimidation. For instance, the FARC (who has accused Uribe of havinglinks with paramilitary groups) made several attempts to assassinatethe newly elected president – Alvaro Uribe – who had campaigned on apolitical platform known as the “policy of democratic security” which160

Colombiareflected a strategy of consolidating state authority through more decisiveaction and direct confrontation with insurgents and paramilitaries.President Uribe, who took office in mid-2002 made it clear from the outsetthat he would not negotiate with armed insurgent groups unless theymet a series of demands including agreeing to a cease fire, cutting all tieswith illegal narcotics trade and halting the killings and abductions of civilians.The guerillas are hesitant to lay down their arms without a clearagreement because in 1984 members of the guerilla movement agreedwith then-President Betancourt to lay down their arms and form a politicalparty, the Patriotic Union (UP), but on that occasion almost 3,000 of theirleaders were subsequently killed.Through his “policy of democratic security” president Uribe has sought tore-establish effective government control over the country by engaging indirect military confrontation with FARC and ELN, and to some extentAUC and by strengthening numbers and presence of the army and policeforces, creating a network of civilian informants, establishing a system forrecruiting peasants into the army, and training highly mobile elite forces.In addition, a state of “internal disturbance” was declared shortly after hetook office granting expanded powers to state security forces. UnderDecree 2002, the government instituted additional measures to restorepublic order which included the creation of “rehabilitation and consolidationzones” under direct military control, in which freedom of movement,residence, etc became subject to strict regulation. However, several of themeasures of Decree 2002, notably those granting the security forcesauthority to carry out arrests and searches without a warrant as well as the“rehabilitation and consolidation zones” were subsequently declaredunconstitutional by the highest court in a holding of 27 November 2002. 12In April 2003, the government submitted a new anti-terrorist legislation toCongress calling for constitutional amendments once again designed togive the government expanded authorities.According to Colombian human rights groups certain aspects of the government’snew security policies have contributed significantly to thehuman rights crisis affecting the country. The army’s part-time recruitmentof peasants to serve as a stand-in replacement for regular securityforces after they withdraw from a territory as well as the creation of a networkof civilian informants has the effect of militarizing civilian populationsand exposing them to a heightened risk of violence at the hands of161

Violence Against Women: 10 Reports / Year 2003armed actors. 13 The government has also engaged in the practice ofblockading civilian populations to prevent food, gasoline and other essentialsfrom reaching armed groups 14 and many abuses perpetrated by statesecurity forces have been directly linked to their expanded authoritiesunder the state’s new security policies. 15As pointed out above, the breakdown of peace negotiations in 2002 signalledan appreciable escalation of the conflict which has in turn resultedin immense humanitarian suffering for civilian populations largelycaught in the cross fire. Insurgents, especially the FARC, stepped up theirattacks on state institutions at all levels and began operating in urbanareas resulting in mounting civilian casualties. Colombia’s economicinfrastructure including oil pipelines, electrical and telecommunicationinfrastructure, water reservoirs and roads were purposely targeted andseverely damaged. 16 The victimisation of civilian population includingtheir forced displacement has become a routine and deliberate strategy ofinsurgents and paramilitaries in their efforts to assert control over largerswaths of territory especially in strategically located gun and drug runningcorridors. 17 Landholding has also become an instrument to laundermoney from the illegal drug trade. Indeed, according to a recent report“[l]andholding is the ‘best paramilitary instrument for laundering andsaving money,’” and, in line with this, “the most efficient way to build aconcentration of wealth is to force people to leave their land.” 18 In thiscontext, the AUC has systematically targeted for assassination those whoare perceived to pose a threat to their dominance including social andhuman rights activists, labour and community leaders, women’s rightsgroups as well as other civilians suspected of sympathising with theguerrillas. 19 FARC and ELN have committed similar abuses againstcivilian populations suspected of association with the paramilitaries orgovernment forces. With respect to the government’s rights record,Colombian rights groups have recorded numerous instances of seriousabuses including torture, extra-judicial executions, arbitrary detentionsand threats. 20 There are numerous and credible reports of collusionbetween state security forces and the AUC. The UNHCHR’s Colombiaoffice has described the situation in the following terms: “In their activities,the paramilitaries continued to take advantage of the lack of action,tolerance or complicity shown by public officials in several regions of thecountry. In many of these areas, the paramilitaries have replaced the162

ColombiaGovernment in important aspects of public life, including the use ofarmed force.” 21“Plan Colombia,” a multi-billion dollar aid package, has also contributedto the worsening human rights situation in Colombia. Although the plancontains human rights criteria, the United States, in particular, has paidlittle attention to these important needs, and instead has focused most ofits aid on military support. Commentators have noted that this support hasdirect links with continuing human rights abuses.UNHCHR notes that increasing incidence of breaches of internationalhumanitarian law and human rights law involving have involved massacres,indiscriminate attacks on civilian populations, acts of terrorism,hostage-taking, disappearances and forced displacement. 22 In an incidentin May 2002, in the town of Bojayá, a gas cylinder bomb launched by theFARC killed more than 110 civilians who had sought refuge from thefighting in a church. This incident alone resulted in the displacement ofapproximately 5000 people from Bojayá to Quibidó, the capital of thedepartment. 23 More recently, a bomb exploded, allegedly set by theFARC, in the Southern city of Colombia, Florencia and killed 11 people.24 Reports also indicate that paramilitaries have engaged in enforceddisappearance, extrajudicial killings and torture.Within the wider context described above, violence against women hasbecome pervasive in all sectors of society. Credible reports of the use ofrape, abduction and homicide as an instrument of war by armed actorsagainst women are particularly common. 25 Rape and sexual violence byall sides of the conflict are reportedly common. Girls are also vulnerableto violence as combatants, both with the conflict and on the part of theirco-combatants. Colombian rights groups observe that the government hasnot taken any specific steps to implement the recommendations of theSpecial Rapporteur on Violence Against Women which resulted from hermission to Colombia 1-7 November 2001. 26 Besides violence againstwomen in the context of the armed conflict, women are also victims ofviolence in the family and in the community in Colombia.Violence against women in Colombia is pervasive and widespread. In thisregard, OMCT regrets the lack of information on violence against womenand girls in Colombia in the Government report and it is also concernedby the absence of any data disaggregated by gender. In light of the163

Violence Against Women: 10 Reports / Year 2003Government report’s lack of attention to the manner in which gendershapes the form of torture, the circumstances in which it occurs and itsconsequences, including the availability and accessibility of remedies, andin line with the objectives of the Violence against Women Programme atOMCT, this report will focus on violence against women in Colombia.The report will begin with a brief description of the status of women inColombia and then go on to examine violence against women perpetratedby the state and armed combatants, violence against internally displacedwomen, violence against women in the family, in the community, andfinally with respect to their reproductive rights.2. General Status of Women in ColombiaArticle 13 of the Constitution of Colombia provides that “All individualsare born free and equal before the law and are entitled to equal protectionand treatment by the authorities, and to enjoy the same rights and freedoms,and opportunities without discrimination on the basis of gender,race, national or family origin, language, religion, political opinion, orphilosophy.” Additionally, Article 43 of the Colombian Constitution statesthat: “Women and men have equal rights and opportunities. Women maynot be subjected to any kind of discrimination. During pregnancy andafter childbirth, women shall enjoy special assistance and protection fromthe State, and shall receive an allowance from the State if unemployed orwithout support.”Colombia also has many laws, besides the Constitution, purporting toguarantee equality between men and women and Supreme Court cases inColombia indicate a commitment to this ideal. Nevertheless, pervasivestereotypes about women persist in Colombia and the reality is thatwomen suffer from discrimination in private and public life. Such discriminationis evident in women’s employment opportunities as well aswomen’s participation in politics.Traditional stereotypes place women primarily in a role as caretakers andvalue the family over all else. Women are often viewed as sex objects andare taught from an early age to be submissive, objects of desire. 27Additionally, these stereotypes lead to a gendered division of labor at anearly age, with girls being tasked with domestic chores in the home and164

Colombiaboys having more time for playing and being away from the house. 28Well, my mom used to tell us that our rights, women’srights, were first of all to respect them (men), know how totreat them with nice words and to obey them. (Testimony asreported in Mesa de Trabajo, Mujer y Conflicto Armado, p.56).With respect to employment, men generally earn 28% more than womenfor equal work. 29 In rural areas, women are more disadvantaged withrespect to work – with 58% of rural women earning less than half of thelegal minimum wage (compared with 31% of men earning so little). 30Additionally, the unemployment rates indicate that less women are working,with 24.5% of women being unemployed as opposed to 16.9% ofmen in 1999. Although it is against the law to fire women for being pregnant,the reality is that many women fear being discriminated against inthis manner. 31Article 40 of the Colombian Constitution provides that “the authoritieswill guarantee the adequate and effective participation of women in thedecision making ranks of the public administration.” Despite this article,women’s participation in public and political life in Colombia is far fromtheir proportion of the population. According to statistics from the Inter-Parliamentary Union, women in Colombia constitute 12% of the lowerhouse (holding 20 out of 166 seats) and 9% of the upper house (holding 9out of 102 seats). These participations rates lead to an overall rate of 8.8%with respect to women’s presence in the legislature in Colombia. 32 Also,although women reportedly hold 59% of all posts within the centraladministration, their presence in decision-making positions is much less,with only 19% of directorships being held by women in 1999. 33 In spiteof this clear disparity between women and men’s participation in politics,there is reportedly a resistance to instituting affirmative action policies toguarantee women’s presence in this sector. 34 Women’s lack of access tothe political sphere in Colombia has been described as a vicious cycle:“Women’s inexperience does not allow them to access these spaces andsince they cannot access, they cannot gain experience.” 35OMCT is concerned that women affected by the conflict, particularly displacedwomen, are not represented in peace negotiations in Colombia. 36165

Violence Against Women: 10 Reports / Year 2003The importance of including women in peace-building efforts cannot beunderestimated, as recognized in the recent report ofn the UN SecretaryGeneral on Women, Peace and Security. 37With respect to education, women have made great progress in achievingthe same levels of education as men. In 2002, literacy rates in Colombiawere reported to be roughly equal, at 92 percent. 38 Also, more women areattending secondary school and receiving higher education. However, itmust be noted that women continue to be focused in “feminine” areas ofstudy.The minimum age of marriage is 18 for both boys and girls. However,with parental permission, boys are allowed to marry as young as 14 andgirls as young as 12. 39 OMCT notes that this exception to the minimumage of marriage is discriminatory towards girls as it provides for differentages at which boys and girls may marry with parental consent.Discrimination against women also manifests itself in various forms ofviolence against women. This gender-based violence takes place in differentcontexts but in all instances, the State is under an international obligationto investigate, prosecute and punish such violence with due diligence.3. Violence against Women Perpetrated by the State andArmed GroupsIt has been reported that in the year from October 1995 to September1996, socio-political violence killed 172 women and caused the disappearanceof 12 women. During the same year, at least 35 women were torturedand another 33 were threatened and harassed. 40 Another reportindicates higher numbers, with a woman being killed every week in combat,every two weeks a woman being a victim of a forced disappearance,and 363 women dying each year because of socio-political violence. 41Violence against women in the armed conflict in Colombia is committedby members of all sides of the conflict.The Special Rapporteur on Violence Against Women has reported that“women are targeted for being relatives of the ‘other’ side. Armedfactions threaten and abuse women for being in solidarity with their166

Colombiahusbands or partners, or because of the partner they have chosen, or forprotecting their sons and daughters from forced recruitment.” 42I am 21 years old and used to work at a bar. One day, a milicianoof the FARC arrived and proposed me and other colleaguesto travel and work with the guys. They requested allmy documentation, because they decide who goes and whodoesn’t… they promised me I would earn three millionpesos in three months and that after that I could return toMedellín. They sent me by airplane, great, with some otherslike me… The first day they showed us the place where wewere going to live and work, but the thing got complicatedwhen I saw the line of men touching me, dirty and withlooks that disgusted me… They forced me to lay with all ofthem and with those to come. I also had to take part on communitarianworking days, that is sweeping the streets,scratching coke, cooking and fucking extra with them, youcan’t imagine how terrible this was, I’m here because I gotill and they let me go, otherwise I would still be there likethe others, they all stayed, poor them! (Testimony as reportedin Mesa de Trabajo, Mujer y Conflicto Armado, p. 91).Although sexual violence by combatants appears to be widespread, suchincidents are underreported and the police often fail to adequately investigatethese crimes. When women are found raped and murdered, policereportedly only register the murder and not the sexual violence. 43 Suchpractices show a lack of concern about violence against women and maypartially explain why many women are hesitant to go to the police concerningsexual violence.3.1 Violence against Women Human Rights DefendersThe Special Representative on Human Rights Defenders has expressedconcern over the murders of several women human rights defenders inColombia. She also recognized that before human rights defenders arekilled, they are often “tortured, raped or mutilated, often atrociously.” 44Certain women’s organizations have been particularly targeted for threatsand violence. Once such example is the National Association for Rural,167

Violence Against Women: 10 Reports / Year 2003Indigenous and Black Women in Colombia (ANMUCIC). On July 21,2000, Marlen Rincón, who was the Departmental President of ANMUCICin San Juan, was killed, allegedly by paramilitaries who accused herof providing aid to guerillas. Additionally, on September 3, 2002, paramilitariesallegedly killed Gloria Marín de Borrero, another ANMUCICleader, in the municipality of Zulia. 45 This organization, in particular itspresident, Ms. Leonora Castaño, was granted protection by the Inter-American Commission on Human Rights on March 2, 2001. 46More recently, another member of ANMUCIC, Mrs. Nhora CeciliaValasquez Cortes, was taken by armed men, kept overnight, and torturedbecause of her activities with this organization. They accused her ofproviding aid to the guerrilla movement. (See OMCT appeal290703.VAW and its follow up) Mrs. Velasquez and other members ofANMUCIC continue to be harassed and receive threats because of theirwork.Women’s organizations as well as individual women are put at additionalrisks because of their role in obtaining food. Paramilitaries reportedlyintervene in attempts to collect food, accusing the women of supplyingnourishment to the guerrilla movement. One such instance of interventionoccurred in August 2002, to a worker with the League of WomenDisplaced by Violence in Bolívar, which coordinates a food programfor displaced persons. When the worker went to receive food under theauspices of the program, she was met by a paramilitary and asked whethershe was providing food to the guerrillas. She explained that the food wasfor displaced people, the paramilitary made a call on his radio, and thenhe warned her that her organization would be placed under surveillanceby his group. Such threats discourage women from continuing theirimportant work in providing food to displaced populations. 47Women are also vulnerable to violence in their attempts to mobilize manifestationsagainst the war. For example:“On July 25 th , 2002, the National Women’s Mobilizationagainst the War took place in Bogotá. More than 25,000women from every city in the country arrived with the collectively-sharedproposal to protest against the war and todemand a negotiated political settlement to the Colombianarmed conflict. On their return journey to the city of168

ColombiaCartagena (Bolívar), on July 27 th , 2002, members of theWomen’s League, as well as women from other organizations,were victims of an act of violence on the highway. Inthe municipality of Río Negro (Antioquia), several armedmen detained the caravan of buses in which they werereturning to Cartagena from Bogotá. These armed mendetained the first of the three buses in the caravan and withsmall weapons threatened the driver who terrorized, fledand hid himself in the cabin of the bus.The majority of the women panicked. However, one of theleaders of the Women’s League established calm, and fromthe stairwell of the bus, initiated a dialogue with the aggressorswho, after taking down the bus’s license plate, allowedthem to move on” 483.2 Child SoldiersIt has been reported that both guerilla and paramilitary groups recruitchild soldiers and that girls form a significant percentage of those soldiers.It is estimated that between 800 and 1,600 child soldiers inColombia are girls. 49Girls become combatants for various reasons, including the desire toescape sexual abuse at home. 50 One report indicates that a major reasonfor girls to decide to join the combatant groups was a strong desire toescape from maltreatment within their family, domestic violence and theextreme burden of domestic work. 51Older male combatants often form sexual relationships with these girls.These relationships are formed in a context where the girls are underageand the older, higher-ranked men have clear power and authority overthem. Because commanders often can offer the girls a certain degree ofprotection, by giving them safer assignments, the girls frequently agree tosexual relations with the older men. However, there have also been reportsof rape within the combating groups. 52The occurrence of rape within the combating groups may be much higherthan reported given that rape generally is underreported, and that girls in169

Violence Against Women: 10 Reports / Year 2003armed groups reportedly view sexual abuse as normal. Thus, they rarelyspeak about such abuse. 53Girl combatants are frequently forced to use contraception, such asintrauterine devices (IUDs) or contraceptive injections, even when theyare not a part of a sexually active couple. When girls become pregnantfrom their relations with the men, they are often forced to have an abortion.544. Internally Displaced WomenThe Representative of the Secretary General on internally displaced personshas noted that internal displacement is a severe problem inColombia. In particular, he observed that displacement of populations inColombia has occurred not only as a result of the armed conflict but alsoas a purposeful strategy of the combatants, who rarely confront each otherdirectly, instead attacking civilians who they suspect of having contactswith the “other” side. 55Internal displacement has disproportionately affected women and children,who constitute 80% of the displaced population. 56 Additionally,reports indicate that over 34,000 women head households that are displaced.57It has been reported that as many as 1 in 5 displaced women have beenraped. Additionally, among this population, 8% of minors have beenraped before reaching the age of 14. 58 Another report indicates that 30%of teenage girls who are displaced have children or are pregnant. 59Combatants reportedly offer young girls money for sex, and displacedgirls, as young as 11, reportedly accept prostitution as a way to supporttheir family. 60 Similarly, there have been cases where paramilitaries haveask parents to give their daughters to the combatants for a couple days asa “community service.” 61Not only are displaced women vulnerable to violence from armed groups,but they are also particularly vulnerable to violence within their own families.Interviews with displaced women reveal that they have perceived anincrease in domestic violence since their displacement. 62170

ColombiaAfrocolombian women face particular problems in displacement. Thisminority community lives in cocoa growing regions, which are highlydesired by the combatants. Thus, they are often displaced and as such, thewomen face triple discrimination: as women, as Afrocolombians and asdisplaced persons. Stereotypes categorizing Afrocolombian women as sexobjects and more general discrimination against this minority group leadsto a situation where they are often targeted for sexual violence. 635. Violence Against Women in the Family5.1 Domestic ViolenceArticle 42 of the Constitution of Colombia provides that “Family relationsare based on the equality of rights and duties of the couple and on themutual respect of all its members. Any form of violence in the family isconsidered destructive of its harmony and unity, and will be sanctionedaccording to law.”Additionally, Law 294 punishes violence in the family, stating “he whomaltreats physically, psychically, or sexually any member of his familynucleus, shall incur a prison sentence from 1 to 2 years.” According to thislaw, maltreatment causing personal injuries is committed when: “he whoby means of physical or psychic violence, cruel, intimidating or degradingtreatment, should cause damage to the body or to the psychological healthof a member of his family group, shall be deprived of liberty for therespective offense, increased by one third to half of the sentence.” The lawfurther defines maltreatment by means of liberty restriction: “he who bymeans of force and without any reasonable cause restricts the liberty oflocomotion of another person of legal age belonging to his family group,shall incur a penalty of 1 to 6 months in prison and a fine of 1 to 16 minimummonthly salaries, if and when this occurrence does not constitute anoffense sanctioned with a larger sentence.”The law punishing violence in the family also provides for court-orderedprotection measures where maltreatment of family members has beendetermined. The punishment for violence in the family can be increased ifsuch violence was perpetrated in violation of a protection order. Law 575171

Violence Against Women: 10 Reports / Year 2003(2000) amended Law 294 by increasing the potential protection measuresavailable. 64Before the amendment to Law 294, protection orders could also beobtained through a tutela action. This is a procedure whereby acomplainant may request immediate protection of fundamental rightsagainst a public authority or against a private person to whom the complainantis subordinate or vulnerable. 65 At first, courts did not accept theuse of a tutela action to guarantee protection from domestic violence.However, the Constitutional Court of Colombia has interpreted thefunction of tutela actions broadly and has not limited the definition offundamental rights to those rights enumerated in the ColombianConstitution. As such, the Constitutional Court asserted that domesticviolence constitutes a violation of a woman’s fundamental rights to “lifeand physical integrity” and thus the use of a tutela action was whollyappropriate. 66With the passage of Law 575 on domestic violence, the ConstitutionalCourt held that tutela actions were no longer valid in cases of domesticviolence, as the new law provided an alternative mechanism forobtaining protection. However, the lower courts have reportedly not beeninterpreting the new law in a way that effectively protects women andsome observers have commented that the tutela action may need to bereinstated as a possible avenue for redress in cases of domestic abuse, 67at least until the new law provides adequate protection for women victimsof domestic violence. Use of the tutela action may be further limited byproposed constitutional amendments that foresee drastic changes in thepermissible uses of this judicial mechanism. 68Another recent amendment to the law has also clarified that punishmentsunder the law against domestic violence are only to be applied wherecharges with a more severe punishment do not apply. This amendment hasbeen criticized as the law provides for a minimal punishment for domesticviolence by itself, sending a message that such violence is not as seriousas other types of violence. 69Despite many laws and court cases concerning domestic violence, theoverriding view remains that domestic violence should be treated as a“private” matter. Hence, although domestic violence in Colombia isreportedly widespread, this prevailing perspective hinders reporting of the172

Colombiacrime and makes it exceedingly difficult to assess the true magnitude ofthe problem.One study indicates that 41 percent of women between the ages of 15 and49 in Colombia have been victims of physical violence perpetrated by aspouse or partner. The same study reveals that 11% of women in the sameage group have experienced sexual violence by husbands or partners. 70The National Institute of Legal Medicine and Forensic Science also offersinformation on the magnitude of the problem of domestic violence inColombia. In 2002, they received, on average, 178 confirmed reports ofinter-family violence on a daily basis. 70% of the violence they documentedwas between spouses, and 78% of the inter-family violence isdirected against women. 71 In 2000, it was reported that there were 73,127cases of conjugal violence – this leads to the statistics of 200 cases perday, 8 cases every hour. 72 With respect to violence between spouses,women are the victims in 91% of the cases. Additionally, women are disproportionatelyvictims of violence committed by other family members.73 Another report indicates that 93% of all domestic violence isdirected towards women victims. 74Although no statistics exist, people in Colombia allegedly report a perceivedincrease in domestic violence and attribute this increase to thearmed conflict. 75 Violence and aggressiveness are extremely present inColombian society and these negative aspects in public life are spillingover into family life with more and more frequency. It is important tonote, however, that violence against women in the home is a deep-rootedsocietal problem and the armed conflict is exacerbating a problem whichwas already existent in more peaceful times.Domestic violence against internally displaced women is also aserious problem, as mentioned earlier. The poor living conditions andaccompanying stress that families endure when they are displaced hasreportedly led to an increase in domestic violence amongst this population.76Traditional views which value family cohesion over individual rightscreate an environment in which it is difficult for women to report domesticviolence. Accordingly, it is estimated that 95% of all domestic abuse issuffered in silence. 77 Another estimate indicates that only 27% of womenvictims of domestic violence report the crime. 78 These cultural mores are173

Violence Against Women: 10 Reports / Year 2003often reinforced by police and other officials, who are responsible forresponding to cases of domestic violence. 79Lack of awareness about rights and remedies is another major obstacle towomen fully enjoying their right to be free from violence. Marginalizedwomen, such as internally displaced women and rural women, are particularlyunaware of their rights as well as the laws forbidding domestic violence.It has also been reported that culturally ingrained views create asituation where violence against women is seen by women as “normal”and expected. 80Additionally, many women do not trust the police and judicial system,thus there is a huge gap between legislation and actual implementation. 81The lack of trust of the police is particularly evident with indigenouswomen who are hesitant to present their familial problems to the police,for fear of causing friction within their own community’s fight for recognitionand aggravating already existent prejudices against their community.82 Besides the lack of trust of the police, there is also a general lack offaith in the law enforcement and judicial systems. Accordingly, if womenwant to see results from their complaints, they will often report to theparamilitaries or the guerillas before going to the police because thearmed combatants will ensure quick action. 83For example, some ill treated women, or those who wanttheir husbands to give them food or something, they won’tgo to Bienestar Familiar, nor to the family court, nor to theprosecutor’s office, because they say these institutions willnot provide the immediate service. So, what are they doingnow? Now they go and ask the paramilitary or the guerrilla,they say they are more effective indeed: “I go to the commanderof the paramilitary, tell them my case, they comeimmediately, they catch him, beat him and next time heknows; that is enough”. (Testimony as reported in Mesa deTrabajo, Mujer y Conflicto Armado, p. 59)Few shelters exist to assist victims of domestic violence, and those thatexist are reportedly subject to severe economic constraints. 84174

Colombia5.2 Marital RapeIn 1996, marital rape was criminalized in Colombia. When this law wasoriginally enacted, it provided for a lesser punishment for rape within thecontext of marriage than for rape generally. However, the ConstitutionalCourt of Colombia declared this difference in punishments unconstitutional.The new Penal Code has amended the law, providing that rapebetween spouses, partners or persons who have a child together is now anaggravating factor to rape, warranting a stricter punishment. 85Despite this law forbidding marital rape, 5.3% of women in Colombiareport having been raped, and in 44% of these cases, the perpetrator wasthe spouse or the partner of the victim. 86 Additionally, it is reported that 1in 5 women who are internally displaced have been raped with a significantproportion of the perpetrators being husbands or companions. 876. Violence Against Women in the Community6.1 Rape and Sexual ViolenceThe law divides sexual offenses into three general categories: rape, abusivesexual acts, and statutory rape. Under the law for rape, three sub-categoriesare delineated: violent carnal access, violent sexual act, and carnalaccess with a person who is incapable of resisting. The punishments forthese crimes of sexual violence have recently been amended: violent carnalaccess is punishable with 8 to 15 years imprisonment (the maximumsentence having been lowered from 20 years); violent sexual act providesfor a penalty of 3 to 6 years in prison (changed from 4 to 8 years); andcommitting a sexual act with someone who is not able to resist is punishablewith 8 to 15 years imprisonment (increased from 4 to 8 years). 88These punishments can be increased when certain aggravating factors arepresent, such as multiple perpetrators, the perpetrator has authority overthe victim, the crime results in pregnancy or a venereal disease for the victim,the victim is less than 10 years old, or the victim is the spouse, partnerof or has a child with the perpetrator. 89It is estimated that around 15,000 rapes went unreported in 1999. 90175

Violence Against Women: 10 Reports / Year 2003Furthermore, reports indicate that 5.3 percent of women report that theyhave been subjected to forced sexual relations at some point and that inmost of these cases, the victims knew their perpetrator. 91 One study alsoindicates that girls who are between ages 12 and 17 are the most vulnerableto becoming victims of sexual violence – with 41 percent reportingviolence in the home and 42 percent reporting violence in public. 92The trauma of rape is exacerbated by cultural views that link women’ssexuality to notions of family “honour.” Women victims of rape facestigmatization and rejection by their families when they are raped.Particularly, husbands reportedly feel betrayed when their wife is raped,as though she provoked the crime, and it can lead to the breakdown of themarriage.The AUC (Autodefensas Unidas de Colombia –Paramilitaries), came to Domingó, husbands fled to thefields and 5 to 10 men raped women between 19 and 30years old. Two married couples have separated since.Husbands felt disappointed of the women that had beenraped, they were ashamed. One of them (husband) left. Thewomen felt ashamed. The other women that knew aboutthese rapes didn’t want to go to town because they wereafraid that the same thing might happen to them. (Testimonyas reported in Mesa de Trabajo, Mujer y Conflicto Armado,p. 27)The situation for women who become pregnant from rape is also concerning.In addition to the lack of support and potential rejection they facefrom their families, women who have been raped face criminal chargesif they decide to have an abortion. As described below, the law forbiddingabortion only provides for a lessened punishment if the abortion is performedas a result of pregnancy from rape.It is suspected that rape and other crimes of sexual violence are drasticallyunderreported. Statistics demonstrate that about 775 teenagers are rapedeach year, while only 17% of the those victims report the crime publicly.Similarly, a 2001 survey of internally displaced women indicated thatwhile rates of sexual violence are high, 84% of the women never soughtout assistance after being abused. 93176

ColombiaThe Supreme Court in Colombia has demonstrated a progressive approachto rape cases. Specifically, it has held that the lifestyle of the victim, thefact that she knew her assailants, and the fact that she accompanied herassailants voluntarily are irrelevant factors in establishingconsent. In the same case, the court also held that resistance to rape mustonly be reasonable to an objective observer. 94 Despite this importantinterpretation of the law, the judicial system as a whole has not necessarilyadopted the same approach. Many courts reportedly still take intoaccount subjective judgments about a victim’s reputation, making her testimonyless credible. 95When women do come forward to denounce such violence, they are oftenmet with discriminatory stereotypes in the judicial and law enforcementsystems that perpetuate notions that the victim is to blame for provokingthe violence. Also, it is reported that protection of women is sometimesgranted according to opinions of whether a woman is “honest” or not, andthat some opinions do not view women as credible witnesses. 96Lack of funds is a serious obstacle to women’s access to justice inColombia. Legal services are not readily available free of charge andwhere they are, the providers have not received gender sensitivity training.Additionally, private lawyers are too expensive for most women.Additionally, the high cost of lab tests from government’s forensic medicinedepartment, which are required in order to sustain charges of rape,prevent many women from pursuing a case against their perpetrator. 97One interview with a woman revealed the following testimony:Her brother-in-law raped her 16-year-old sister. They wentto the authorities and to the hospital but were not able to payfor the laboratory analysis which cost $50.00. Without this,the investigation ended. My sister, she said tearfully, is nowsix months pregnant. (Testimony from Reproductive Healthfor Refugees Consortium, Displaced and Desperate:Assessment of Reproductive Health for Colombia’sInternally Displaced Persons, p. 31 (2003)).6.2 TraffickingIn the Constitution of Colombia, Article 17 prohibits “slavery, servitudeand the slave trade.” In June 2002, a new law was introduced to prohibit177

Violence Against Women: 10 Reports / Year 2003trafficking in persons. It provides that:“anyone who promotes, induces, constrains, enables,finances, co-operates, or participates in a person’s transferwithin the national territory or abroad by resorting to anyform of violence, ruse or deception, for exploitation purposes,to lead such person to work in prostitution, pornography,debt bondage, begging, forced labour, servile marriage, slaveryfor purposes of obtaining financial profit, or any otherbenefit either for himself or for another person, shall incur10 to 15 years imprisonment and a fine.” 98This important law has the potential to be an effective tool in fightingagainst human trafficking. However, given its recent enactment, the mannerin which it is implemented remains to be seen. Colombia has signedbut not ratified that Protocol to Prevent, Suppress and Punish Traffickingin Persons, Especially Women and Children, supplementing the UNConvention against Transnational Organized Crime.Colombia is a country of origin for trafficked women, with traffickingoccurring internally, regionally and internationally. Reports indicate thatas many as 35,000 women a year are sent abroad for traffickingpurposes. 99 In particular, women from Colombia are trafficked to Japan inlarge numbers, with estimates claiming that 40% of all traffickedColombian women are taken to Japan. It is reported that this traffickingroute is heavily linked to the Japanese mafia, who also engage in drug andarms trafficking. 100Over the 8 year period between 1992 and 2000, only 99 cases were filedagainst traffickers and of those, only 7 actually went to trial. The averagepunishment was between two and five years in prison, which meant thatmany of the convicted traffickers were able to go free as two years is theminimum sentence and under the Colombian system these sentences areoften not served. 101According to ESPERANZA, a Colombian NGO working on this issue,problems perpetuating the phenomenon of trafficking in women includepoverty, lack of education, continuing violence and conflict, lack ofawareness in all sectors of society and the lack of preventionmechanisms. 102178

ColombiaThe fact that traffickers have generally received only the minimum sentencein the past has been a discouraging factor for trafficking victims tryingto evaluate whether they should file a case. Another obstacle is thelong delays in the court system meaning that it may take years to get ajudgment against a trafficker. 103 Many trafficking victims are also fearfulof reporting their traffickers because their personal safety may be jeopardized.The police offer no protection to trafficking victims leaving themvulnerable to further contact with the traffickers. 104 Besides the lack ofwitness protection by the State, social services, such as housing and counseling,are also not provided by the State. The provision of these servicesfalls to NGOs who suffer from a severe lack of resources. 1057. Reproductive RightsUndergoing or performing an abortion is a criminal act in Colombia. Thepunishment is aggravated for persons who perform an abortion withoutthe woman’s consent. The penalty is lessened for women who undergoabortions when they are pregnant as a result of nonconsensual sex (rape)or nonconsensual artificial insemination. The new Penal Code adopted in2000 adds a provision which allows judges to drop all punishment whenthe “abortion is been performed in abnormal and extraordinary circumstancesof motivation.” It remains to be seen how this phrase in the PenalCode will be interpreted by the courts. 106Women’s access to contraceptive methods is hindered by traditional viewsthat see the desire to use birth control as a sign of infidelity or “corruption”on the part of the wife. Also, the Catholic Church in Colombiaexerts considerable influence in forbidding the use of non-natural birthcontrol methods. 107 It is reported that decisions concerning the numberand spacing of children a woman will have are taken almost exclusivelyby husbands. 108Despite the prohibition and criminalization of abortion, the practice isreportedly widespread. According to statistics from 1998, 26% of womenattending university admitted to having had an abortion. The same statisticsreveal that one third of all women who have been pregnant have hadan abortion. 109 The illegal nature of the act puts many women’s lives atrisk as they have abortions performed in clandestine situations with no179

Violence Against Women: 10 Reports / Year 2003medical standards regulating the circumstances. Thus, it is reported thatcomplications from abortions is the second leading cause of maternalmortality in Colombia. 110 Reports also indicate that obtaining a safe(although illegal) abortion in Colombia is very much dependent upon theeconomic status of the woman, with poor women suffering from muchmore dangerous operations.8. Conclusions and RecommendationsOMCT is pleased to note that Colombia’s Constitution guarantees equalitybetween men and women, and that several high level court cases indicatea commitment by the judiciary to enforce this guarantee. Colombiahas also passed many laws attempting to ensure that women are able tofully enjoy their rights. However, the reality in Colombia is that womencontinue to suffer from multiple forms of discrimination, which oftenmanifests itself through violence against women.The government of Colombia is strongly urged take measures to guaranteewomen’s equal opportunities in employment. Additionally, moreefforts should be made to ensure that women are adequately representedat all levels of government. Women should also be included in peacenegotiation efforts.OMCT is concerned that girls in Colombia may be married as young as12 and recommends that the government amend this provision so that theminimum age of marriage with parental permission is the same as theminimum age for boys and consider setting the age of marriage at 18 forboth girls and boys in all circumstances.Women in Colombia are particularly vulnerable to violence by armedcombatants, both paramilitaries and guerillas, in the context of the internalconflict. OMCT insists on the government’s obligations to investigate,prosecute and punish with due diligence all incidents of sexual violenceperpetrated by armed combatants. OMCT also recommends that the governmentestablish special support services for women victims of such violenceby the armed combatants.OMCT is deeply concerned for the safety of women human rights defenders.As such, OMCT particularly calls on the government to ensure the180

Colombiaphysical and psychological integrity of all such women who are workingto provide essential services to the population of Colombia.OMCT is gravely concerned about the high numbers of children, includinggirls, among combatant groups. The government should examine theroot causes that push children to join such groups and institute adequateprogrammes and services to address this problem. Also, support servicesfor children who have participated in the conflict should be given priorityin an effort to rehabilitate these children. Reports of rape within thesegroups must be investigated, prosecuted and punished with due diligence.Furthermore, the government should ensure that girls who have beenforced to use contraception or forced to undergo abortions receive adequatereparations from these violations of their bodily integrity.Internally displaced women are also severely at risk of violence both atthe hands of armed combatants and within their own families. Protectionand social services must be offered to these women. Law enforcementpersonnel must be trained to respond effectively to internally displacedwomen taking into account their specific needs arising from their displacementas well as their lower status as women.Although Colombia has specific legislation outlawing domestic violence,this legislation could be strengthened. OMCT notes that the recent amendmentto Law 294 by Law 575, providing that charges of domestic violenceare only applied where more severe charges are not applicable sendsa message that domestic violence is a less serious crime than other crimes.OMCT is also concerned at the removal of the tutela action with respectto domestic violence cases, as this procedure had served as a valuable toolfor victims in securing their rights. Given that the alternative mechanismsfor providing redress to victims of domestic violence have not fulfilledthis purpose, OMCT observes that tutela actions should be reinstated asan avenue of protection for victims of domestic violence, at least whilethe protection measures provided for by law remain ineffective.Domestic violence is reportedly widespread in Colombia and more effortsmust be made to eradicate this violence. This violence, including maritalrape, is drastically underreported. Awareness-raising programmes shouldbe instituted to ensure that women are knowledgeable about the law andtheir rights and to encourage reporting of the crime. Additionally, campaignsto sensitize Colombian society to the gravity of domestic violence181

Violence Against Women: 10 Reports / Year 2003should be embarked upon to overcome stereotypes about women and prevailingopinions classifying domestic violence as a private matter.Training courses for all law enforcement officers, including prosecutorsand judicial personnel, should be created in order that these governmentofficials handle cases of domestic violence in a sensitive manner.Additionally, the government should ensure that women victims ofdomestic violence have access to support services, including shelters, aswell as judicial remedies. Furthermore, OMCT insists on the government’sobligation to investigate, prosecute and punish domestic violencewith due diligence.Special attention must be paid to marginalized women with respect to violencewithin the family. These women are often unaware of their rightsand they suffer from discrimination in accessing remedies. OMCT recommendsthat the government establish specific measures intended to reachout to these marginalized populations.OMCT notes that recent amendments to the penal code have providedlesser punishments for rape. Rape is a particularly concerning crime inColombia. OMCT is concerned that women are often blamed for havingprovoked the crime of rape and is alarmed that women victims of rape aresometimes doubly victimized because their families or husbands willreject them on account of the rape. OMCT finds that it is urgent that comprehensivemeasures be implemented to counteract these traditionalviews.Additionally, women victims of rape face serious obstacles in filing acomplaint against their perpetrators as all medical examinations must beconducted by the government forensic medicine department and manywomen cannot afford the attached fees for such an examination. OMCTurges the government to provide free medical examinations to womenwho have been raped and recommends that social services, such as counseling,be offered to victims.OMCT is gravely concerned about the high incidence of trafficking inwomen from Colombia. OMCT further observes that traffickers are rarelyprosecuted and when they are, they are often given a minimal punishment.Long delays in the court system and the lack of witness protection to traffickingvictims also serve to discourage women from reporting the crimeof trafficking. In implementing its recently passed legislation on traffick-182

Colombiaing, the government of Colombia should ensure that cases are pursued inan efficient manner, that traffickers are punished in accordance with thegravity of their crime and that victims are guaranteed appropriate protectionand social services. OMCT also calls upon the government to ratifythe Protocol to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children, supplementing the UN Conventionagainst Transnational Organized Crime.OMCT is deeply troubled by the high rate of death in connection withclandestine abortions and vehemently urges the government to considerlegalizing abortion in cases of rape and incest. OMCT also believes thatall persons should have the right to decide freely and responsibly aboutthe number, spacing and timing of their children and to have the informationand means to do so, and the right to attain the highest standard of sexualand reproductive health. This also includes the right to make decisionsconcerning reproduction free of discrimination, coercion and violence.OMCT would recommend the elaboration of adequate family-planningprogrammes.Finally, OMCT would insist on the need to fully implement all provisionsof the Convention on the Elimination of Discrimination against Women,the Declaration on the Elimination of Violence against Women as well asthe Beijing Platform of Action, in Colombia as these are the most relevantinternational instruments concerned with all forms of violence againstwomen.1 Under Article 93 “the international treaties and agreements ratified by Congressthat recognize human rights and prohibit their limitation in states of emergencyprevail in the national law.” Constitución Política de Colombia de 1991, actualizadahasta la Reforma de 2001, available at . www.georgetown.edu/pdba/Constitutions/Colombia/col191.html, (unofficial translation).2 Constitución Política de Colombia de 1991, actualizada hasta la Reforma de 2001(unofficial translation).3 According to the Sistema de Estimación por Fuentes Contrastadas (SEFC) a bodyset up in 2002 which uses multiple sources (SUR, CODHES, RUT) to generateIDP data, in 2002, 168,951 persons were displaced in Colombia in 2002. See183

Violence Against Women: 10 Reports / Year 2003Mesa de Trabajo: Mujer y Conflicto Armado, Informe Sobre ViolenciaSociopolitica Contra Mujeres, Jóvenes y Niñas en Colombia, Tercer Informe -2002, pp. 18-19. See also, International Crisis Group (ICG), Latin America ReportN°4, Bogota/Brussels, Colombia’s Humanitarian Crisis, Bogota/Brussels, 9 July2003. According to this report the year 2002 “saw the highest absolute and relativeincreases of internal displacement in the last ten years” in Colombia, p. 3.4 UN Doc. E/CN.4/2003/13, p. 16.5 E/CN.4/2003/13Ibid., p. 7.6 See Anders Rudqvist, Popular Participation in Colombia, in “Breeding Inequality– Reaping Violence, Exploring Linkages and Causality in Colombia and Beyond,”Collegium For Development Studies, Uppsala (2002)7 Fuerzas Armadas Revolucionarias de Colombia – Ejercito Popular.8 Ejercito de Liberacion Nacional.9 Autodefensas Unidas de Colombia.10 According to the Colombian prosecutor generals office, the FARC’s annualincome from drug trafficking, kidnapping and extortion is estimated to amount to$2.5 billion annually. Economist Intelligence Unit, Colombia Country Report July2003.11 See ICG Latin America Report N°5 Bogotá, Colombia: Negotiating with theParamilitaries, Bogota/Brussels, 16 September 2003, Chapter 2c, “DrugTrafficking”.12 Observatory for the Protection of Human Rights Defenders, OMCT and FIDH,Informe Misión internacional de investigación, Colombia: ?Administración de lajusticia....o de la impunidad?, March 2003, p. 10.13 Working Group on Women and Armed Conflict, Bogota, Colombia, October2002: Follow-up to the Recommendations of the United Nations SpecialRapporteur for Violence Against Women, Its Causes and Consequences, Ms.Radhika Coomaraswamy – Mission to Colombia (November 1-7, 2001).14 Working Group on Women and Armed Conflict, Ibid., p. 10-11.15 See generally UN Doc. E/CN.4/2003/13, Ibid..16 ICG Latin America Report N°4, Bogota/Brussels, Colombia’s HumanitarianCrisis, Bogota/Brussels, 9 July 2003., p. 7.17 “Forced displacement is used by armed actors as a tool to de-populate strategicareas over which they seek control ...” El Desplazamiento Forzado y los DESC delas Mujeres, Una mirada a las vivencias de mujeres colombianas desplazadas yasentadas en el Área Metropolitana de Bucaramanga – Santander (2003), p. 3.18 ICG Latin America Report N°5, Colombia: Negotiating with the Paramilitaries,Bogota/Brussels, 16 September 2003, p.11.19 ICG Latin America Report N°5, Ibid., p. 7.20 According to CINEP, security forces (army & police) were responsible for 100extra-judicial execution, 89 threats, and 49 acts of torture and 1030 arbitrarydetentions in 2002. Banco de Datos de derechos humanos y violencia politica,cited in ICG Latin America Report N°4, Bogota/Brussels, Ibid.21 UN Doc. E/CN.4/2003/13, Ibid., p.14.22 Ibid., p. 19.184

Colombia23 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid., p. 19.24 New York Times, 11 Killed in Colombian City Bombing, September 28, 2003.25 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid. See Aalso, ICG Latin AmericaReport N°4, Ibid., ICG Colombia’s Humanitarian Crisis, op. cit, p. 5 “The armedgroups often force women heads of household to leave their homes because of theprominent role they play in community development.”26 Working Group on Women and Armed Conflict, Bogota, Colombia, October2002: Follow-up to the Recommendations of the United Nations SpecialRapporteur for Violence Against Women, Its Causes and Consequences, Ms.Radhika Coomaraswamy – Mission to Colombia (November 1-7, 2001).Ibid.27 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid. , p. 30, 56.28 Alternative Report Presented to the Follow up Committee on the Convention forthe Elimination of All Forms of Discrimination Against Women – CEDAW, LatinAmerica and Caribbean Committee for the Defense of Women’s Rights (CLA-DEM), Bogota, December 1998, p. 13.29 Women Fight Back in Colombia, 8 Siren, March 2002.30 Alternative Report, CLADEM, Ibid., p. 3.31 Ibid., p. 3.32 Inter-Parliamentary Union, Statistics, available at www.ipu.org/wmne/classif.htm.33 Inter-American Commission, Third Report of the Human Rights Situation inColombia, Chapter XII: Women (1999), available athttp://www.cidh.oas.org/countryrep/Colom99en/table%20of%20contents.htm.34 Alternative Report, CLADEM, Ibid., p. 9.35 Ibid., p. 19.36 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid., p. 21.37 Women, Peace and Security, Study Submitted to the Secretary General Pursuantto Security Resolution 1325 (2000), United Nations (2002).38 Pan American Health Organization, World Health Organization, and PopulationReference Bureau, Gender, Health and Development in the Americas 2003.39 Alternative Report, CLADEM, Ibid., p. 55.40 Ibid., p. 20.41 terre des hommes – Germany, Erika Páez, Girls in the Colombian Armed Groups:A Diagnosis, p. 10-11 (September 2001).42 Special Rapporteur on Violence against Women, its causes and consequences,Mission to Colombia, U.N. Doc. E/CN.4/2002/83/Add.3.43 Reproductive Health for Refugees Consortium, If Not Now, When?: AddressingGender Based Violence in Refugee, Internally Displaced and Post ConflictSettings: A Global Overview: Country Profiles from Latin America: Colombia,Guatemala, Nicaragua, p. 107, (2002), available at www.rhrc.org.44 Special Representative on human rights defenders, Mission to Colombia, UN Doc.E/CN.4/2002/106/Add.2, p. 17 (April 2002).45 Working Group on Women in Armed Conflict – Follow up to SR’s investigation,Ibid.185

Violence Against Women: 10 Reports / Year 200346 Ibid.47 Ibid.48 Ibid. (quoting information received from the League of Women Displaced byViolence in Bolívar and by Women’s International League for Peace andFreedom).49 terre des hommes – Germany, Erika Páez, Girls in the Colombian Armed Groups:A DiagnosisIbid., p. 8 (September 2001)50 Human Rights Watch, You’ll Learn Not to Cry: Child Combatants in Colombia,p. 55 (September 2003); terre des hommes – Germany, Ibid., p. 12.51 terre des hommes – Germany, Ibid., p. 12.52 For a comprehensive report on child soldiers in Colombia, including a chapter ongirls, see Human Rights Watch, You’ll Learn Not to Cry, Ibid.53 terre des hommes – Germany, Ibid., p. 18.54 Human Rights Watch, You’ll Learn Not to Cry, Ibid., pp. 58-59.55 UN Doc. E/CN.4/2000/83/Add.1.56 Ibid.57 Inter-American Commission on Human Rights: Report on Colombia.58 Jeremy McDermott, Abuse Horror of Colombia’s Displaced , BBC News, (August17, 2001), available at http://news.bbc.co.uk/2/hi/americas/1495978.stm.59 U.S. Dep’t of State, Human Rights in Colombia, 2002 (citing study by ColombianPro-Family Institute)60 Reproductive Health for Refugees Consortium, If Not Now, When?, Ibid. p. 107.,61 Reproductive Health for Refugees Consortium, Displaced and Desperate:Assessment of Reproductive Health for Colombia’s Internally Displaced Persons,p. 20 (2003).62 Ibid., pp. 23, 32.63 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid., p. 24-2764 Center for Reproductive Rights, Women of the World: Colombia, p. 35 (2001).65 Martha Morgan, Taking Machismo to Court: The Gender Jurisprudence of theColombian Constitutional Court, University of Miami Inter-American LawReview vol. 30, p. 262 (1999).66 Ibid., p. 283.67 Ibid., p. 284.68 Observatory for the Protection of Human Rights Defenders, OMCT and FIDH,Rapport d’une Mission d’Enquête Internationale, Colombie: Administration de laJustice ou de l’Impunité? (March 2003).69 Carmen Posada, Secretary of Gender Equality for Women, Antioquia province,Colombia, Improving the Quality of Services: Gender Awareness and Integralityin the Implementation of Norms, p. 3, Symposium 2001, “Gender violence, healthand rights in the Americas,” Cancun, Q.R. Mexico, June 4-7, 2001.70 Pan American Health Organization, World Health Organization, & PopulationReference Bureau, Gender, Health and Development in the Americas 2003.Ibid.71 Jorge O. Gonzalez Ortiz, National Institute of Legal Medicine and Forensic186

ColombiaScience, Violencia Intrafamiliar: Una Forma de Relacíon, un Asunto de DerechosHumanos, pp. 65-82 (2002).72 Center for Reproductive Rights, Women of the World: Colombia, Ibid., p. 35(2001).73 Ortiz, National Institute of Legal Medicine and Forensic Science, ViolenciaIntrafamiliar, Ibid., pp. 65-82.74 Alternative Report, CLADEM, Ibid., p. 57.75 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid., p. 46.76 Reproductive Health for Refugees Consortium, Displaced and Desperate, Ibid., p.8.77 Reproductive Health for Refugees Consortium, If Not Now, When?, Ibid., p. 108.78 Carin Benninger-Budel & Anne-Laurence Lacroix, OMCT, Violence AgainstWomen: A Report, p. 98 (1999) ).79 Alternative Report, CLADEM, Ibid., p. 10, 50.80 Carmen Posada, Secretary of Gender Equality for Women, Antioquia province,Colombia, Improving the Quality of Services: Gender Awareness and Integralityin the Implementation of NormsIbid., p. 4, Symposium 2001, “Gender violence,health and rights in the Americas,” Cancun, Q.R. Mexico, June 4-7, 2001.81 Reproductive Health for Refugees Consortium, Displaced and Desperate, Ibid., p.20.82 Mesa de Trabajo: Mujer y Conflicto Armado, Ibid., p. 51.83 Ibid., p. 59.84 Benninger-Budel & Lacroix, OMCT, Violence Against Women, Ibid., p. 98(1999).85 Center for Reproductive Rights, Women of the World: Colombia, p. 34 (2001) (art.211).86 Center for Reproductive Rights, Women’s Reproductive Rights in Columbia: AShadow Report, p. 17 (1998).87 McDermott, Abuse Horror of Colombia’s Displaced, Ibid.88 Center for Reproductive Rights, Women of the World: Colombia, p. 34 (2001).89 Center for Reproductive Rights, Women’s Reproductive Rights in Columbia: AShadow Report, p. 16 (1998); Center for Reproductive Rights, Women of theWorld: Colombia, p. 35 (2001).90 Women Fight Back in Colombia, 8 Siren, March 2002.91 Center for Reproductive Rights, Women’s Reproductive Rights in Columbia: AShadow Report, p. 17 (1998).92 Center for Reproductive Rights, Women of the World: Colombia, p. 36 (2001).93 Reproductive Health for Refugees Consortium, If Not Now, When?, Ibid., p. 107.94 Center for Reproductive Rights, Bodies on Trial: Reproductive Rights in LatinAmerican Courts, p. 61 (2003) (citing Supreme Court, Penal Cassation Court,decision 10672, September 18, 1997, Presiding Judge Dídimo Páez).95 Reproductive Health for Refugees Consortium, If Not Now, When?, Ibid., p. 107,(2002).187

Violence Against Women: 10 Reports / Year 200396 Center for Reproductive Rights, Women’s Reproductive Rights in Columbia: AShadow Report, p. 18 (1998).97 Benninger-Budel & Lacroix, OMCT, Violence Against Women, Ibid., p. 160.98 Penal Code, Article 188A, as quoted in Anti-Slavery International, HumanTraffic, Human Rights: Redefining Victim Protection, p. 187 (2002).99 Reproductive Health for Refugees Consortium, If Not Now, When?, Ibid., p. 107.100 Fanny Polanía Molina, Japan, The Mecca for Trafficking in Colombian Women(2001).101 Anti-Slavery International, Human Traffic, Human Rights: Redefining VictimProtection, p. 188 (2002).102 As cited by Alternative Report, CLADEM, Ibid., p. 16.103 Anti-Slavery International, Human Traffic, Ibid., p. 189.104 Ibid., p. 191-92.105 Ibid., p. 195.106 Center for Reproductive Rights, Women of the World: Colombia, p. 33 (2001).107 Alternative Report, CLADEM, Ibid., p. 41.108 Ibid., p. 57.109 Center for Reproductive Rights, Women’s Reproductive Rights in Columbia: AShadow Report, p. 8-9 (1998) (citing article Abortion: Something in Style at theUniversity, El Tiempo 6A, (October 6, 1998)).110 Alternative Report, CLADEM, Ibid., p. 42.188

ColombiaCommittee against TortureTHIRTY-FIRST SESSION – 10-21 NOVEMBER 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 19 OF THE CONVENTIONCONCLUDING OBSERVATIONS BY THE COMMITTEE AGAINST TORTURE:COLOMBIA1. The Committee considered the third periodic report of Colombia(CAT/C/39/Add.4) at its 575th and 578th meetings, held on 11 and 12November 2003 (CAT/C/SR.575 and 578), and adopted the followingconclusions and recommendations.A. Introduction2. The Committee welcomes the third periodic report of Colombia, butregrets that it was submitted on 17 January 2002, five years late. Itnotes that the report contains little information on the practical applicationof the Convention over the reporting period. The Committee is,however, grateful for the exhaustive oral replies that the State party’sdelegation gave to most of its members’ questions and for the statisticsprovided during the consideration of the report.B. Positive aspects3. The Committee notes with satisfaction the State party’s adoption of anumber of domestic laws of relevance to the prevention and suppressionof torture and ill-treatment, in particular:189

Violence Against Women: 10 Reports / Year 2003(a) The new Penal Code (Act No. 599/2000), which defines theoffences of torture, genocide, forced disappearance and forced displacementand states that due obedience will not be considered asjustifying those offences;(b) The new Military Penal Code (Act No. 522/1999), which excludesthe offences of torture, genocide and forced disappearance fromthe jurisdiction of the military criminal courts and regulates theprinciple of due obedience;(c) Act No. 548/1999, which prohibits the conscription of personsunder 18 years of age;(d) The new Code of Penal Procedure (Act No. 600/2000), title VIwhereof provides that illegally obtained evidence will be inadmissible.4. The Committee also welcomes:(a) Act No. 742/2000 approving the ratification of the Rome Statute ofthe International Criminal Court, the instrument whereof wasdeposited on 5 August 2002;(b) Act No. 707/2001 approving the ratification of the Inter-AmericanConvention on Forced Disappearance of Persons.5. Similarly, the Committee expresses its satisfaction at:(a) The statement by the State party’s representative that there neitherhas been nor will be any amnesty or clemency in the State party foracts of torture;(b) The positive role of the Constitutional Court in the defence of therule of law in the State party;(c) The ongoing cooperation between the office in Colombia of theUnited Nations High Commissioner for Human Rights and theGovernment of Colombia.190

ColombiaC. Factors and difficulties impeding the application of theConvention6. The Committee is aware of the difficulties with respect to humanrights and international humanitarian law arising from the current complexsituation in the country, especially in a context characterized by theactivities of illegal armed groups. The Committee nonetheless reiteratesthat, as stated in article 2 of the Convention, no exceptional circumstanceswhatsoever may be invoked as a justification of torture.D. Subjects of concern7. The Committee reiterates its concern at the numerous acts of tortureand ill-treatment reported widely and systematically committed by theState security forces and organs in the State party both during and outsidearmed operations. It also expresses its concern at the high numberof forced disappearances and arbitrary executions.8. The Committee expresses its concern that measures adopted or beingadopted by the State party against terrorism and illegal armed groupscould encourage the practice of torture. In this regard the Committeeexpresses its concern, in particular, at:(a) The recruitment of part-time “peasant soldiers”, who continue tolive in their communities but participate in armed action againstguerrillas, so that they and their communities may be the target ofaction by the illegal armed groups, including acts of torture and illtreatment;(b) Constitutional reform bill No. 223/2003, which, if adopted, wouldseem to confer judicial powers on the armed forces and enable personsto be detained and questioned for up to 36 hours withoutbeing brought before a judge.9. The Committee also expresses its concern at:(a) The climate of impunity that surrounds human rights violations byState security forces and organs and, in particular, the absence ofprompt, impartial and thorough investigation of the numerous acts191

Violence Against Women: 10 Reports / Year 2003of torture or other cruel, inhuman or degrading treatment or punishmentand the absence of redress and adequate compensation forthe victims;(b) The allegations of tolerance, support or acquiescence by the Stateparty’s agents concerning the activities of the paramilitary groupsknown as “self-defence groups”, which are responsible for a greatdeal of torture or ill-treatment;(c) The judicial reform bill, should it be approved, would reportedlyprovide for constitutional limitation of amparo proceedings andreduce the powers of the Constitutional Court, particularly withrespect to the review of declarations of states of emergency.Similarly, the Committee expresses its concern at the “alternativepenalties” bill, which, if approved, would, even if they had committedtorture or other serious breaches of international humanitarianlaw, grant conditional suspension of their sentences to membersof armed groups who voluntarily laid down their arms;(d) The allegations and information indicating:(i) That some prosecutors in the Human Rights Unit of thePublic Prosecutor’s Office have been forced to resign andthat members of the Unit have been threatened in connectionwith their investigation of cases of human rights violations;(ii) Inadequate protection against rape and other forms ofsexual violence, which are allegedly frequently used asforms of torture or ill-treatment. The Committee furtherexpresses its concern at the fact that the new Military PenalCode does not expressly exclude sexual offences from thejurisdiction of the military courts;(iii) The fact that the military courts are allegedly still,despite the promulgation of the new Military Penal Codeand the Constitutional Court’s decision of 1997 that crimesagainst humanity did not fall within the jurisdiction of themilitary courts, investigating offences that are totally excludedfrom their competence, such as torture, genocide andforced disappearance in which members of the police orarmed forces are suspected of having been involved;192

Colombia(iv) The widespread, serious attacks on human rightsdefenders, who are playing an essential role in reporting tortureand ill-treatment; in addition, the repeated attacks onmembers of the judiciary, threatening their independenceand physical integrity;(e) The numerous forced internal displacements of population groupsas a result of the armed conflict and insecurity in the areas in whichthey live, taking into account the continuing absence in those areasof State structures that observe and ensure compliance withthe law;(f) The overcrowding and poor conditions in penal establishments,which could be considered inhuman or degrading treatment;(g) The absence of information on the application of article 11 of theConvention as regards the State party’s arrangements for the custodyand treatment of persons subjected to arrest, detention orimprisonment, and the reports received by the Committee to theeffect that the State party is failing to discharge its obligations inthis respect;(h) The lack of satisfactory information concerning the rules in theState party’s law for ensuring the application of article 3 of theConvention to cases of refoulement or expulsion of aliens in dangerof being tortured in the country of destination.E. Recommendations10. The Committee recommends that the State party take all necessarymeasures to prevent the acts of torture and ill-treatment that are beingcommitted in its territory, and in particular that it:(a) Take firm steps to end impunity for persons thought to be responsiblefor acts of torture or ill-treatment; carry out prompt, impartialand thorough investigations; bring the perpetrators of torture andinhuman treatment to justice; and provide adequate compensationfor the victims. It recommends in particular that the State partyreconsider in the light of its obligations under the Convention theadoption of the “alternative penalties” bill;193

Violence Against Women: 10 Reports / Year 2003(b) Reconsider also, in the light of its obligation to prevent torture andill-treatment under the Convention:(i) The use of “peasant soldiers”;(ii) The adoption of measures that appear to give military forcespowers of criminal investigation under which suspects can bedetained for long periods without judicial control;(iii) The judicial reform bill, so as to provide full protection foramparo proceedings and respect and promote the role of theConstitutional Court in defending the rule of law;(c) Ensure that anyone, especially any public servant, who backs,plans, foments, finances or in any way participates in operations byparamilitary groups, known as “self-defence groups”, responsiblefor torture is identified, arrested, suspended from duty and broughtto justice;(d) Ensure that the staff of the Human Rights Unit of the PublicProsecutor’s Office are able to carry out their duties independently,impartially and in safety and provide the Unit with the resourcesneeded to do its work effectively;(e) Investigate, prosecute and punish those responsible for rape andother forms of sexual violence, including rape and sexual violencethat occur in the framework of operations against illegal armedgroups;(f) That in cases of violation of the right to life any signs of torture,especially sexual violence, that the victim may show be documented.That evidence should be included in forensic reports so that theinvestigation may cover not only the homicide but also the torture.The Committee also recommends that the State party provide medicalstaff with the training necessary to determine when torture orill-treatment of any kind has occurred;(g) Respect the provisions of the Military Penal Code that excludecases of torture from the jurisdiction of the military courts andensure that those provisions are respected in practice;194

Colombia(h) Take effective measures to protect human rights defenders againstharassment, threats and other attacks and report on any judicialdecisions and any other measures taken in that regard. TheCommittee also recommends the adoption of effective measures forthe protection of the physical integrity and independence of membersof the judiciary;(i) Take effective measures to improve conditions in places of detentionand to reduce overcrowding there;(j) Ensure, so as to preclude all instances of torture or cruel, inhumanor degrading punishment, that persons subjected to any form ofarrest, detention or imprisonment are treated according to internationalstandards;(k) Report in its next periodic report on the domestic legal provisionsthat guarantee non-refoulement to another State when there aresubstantial grounds for believing that the person concerned wouldbe in danger of being subjected to torture;(l) Make the declarations referred to in articles 21 and 22 of theConvention and ratify the Optional Protocol to the Convention;(m) Ensure the wide distribution in its territory of the Committee’sconclusions and recommendations;(n) Provide to the Committee, within one year, information on itsresponse to the Committee’s recommendations contained in subparagraphs(b), (d), (f) and (h) above.195

Violence against Girls in EritreaA Report to the Committee on the Rightsof the ChildContents1. Preliminary Observations .............................................................................................................................. 1992. Status of Women and Girls ...................................................................................................................... 2013. Violence Against Girls in the Family ........................................................................................... 2033.1 Domestic Violence ................................................................................................................................... 2033.2 Marital Rape ..................................................................................................................................................... 2053.3 Honour Crimes .............................................................................................................................................. 2063.4 Cultural Practices in the Family that Violatethe Human Rights of Girls .......................................................................................................... 2063.4.1 Early Marriage ................................................................................................................................ 2063.4.2 Dowry ............................................................................................................................................................. 2073.4.3 Polygamy..................................................................................................................................................... 2073.4.4 Female Genital Mutilation .......................................................................................... 2073.5 Sexual Abuse and Incest ................................................................................................................... 2094. Violence Against Girls in the Community ............................................................................. 2104.1 Child Sex Workers ................................................................................................................................... 2104.2 Rape ................................................................................................................................................................................ 2115. Violence Against Girls in Armed Conflict ......................................................................... 2135.1 Child Soldiers ............................................................................................................................................... 2135.2 Girls in Emergency Situations ................................................................................................ 2136. Conclusions and Recommendations ............................................................................................... 214Concluding observations of the Committee on the Rightsof the Child: EritreaThirty-third session – 19 May - 6 June 2003Consideration of Reports Submitted by States PartiesUnder Article 44 of the Convention ....................................................................................................... 220A. Introduction ............................................................................................................................................................ 220B. Positive aspects ..................................................................................................................................................... 220C Factors and difficulties impeding the implementationof the Convention ............................................................................................................................................. 221D. Principle areas of concern and recommendations .......................................... 221197

Eritrea1. Preliminary ObservationsThe submission of specific information on violence against girls to theCommittee on the Rights of the Child forms part of the Violence AgainstWomen Programme of OMCT, which focuses on the integration of a genderperspective into the work of the United Nations human rights treatymonitoring bodies.The Convention on the Rights of the Child (hereinafter “Convention”)establishes standards for the protection of girls from physical and psychologicalviolence in the home, in the community and at the hands of Stateofficials. The Convention uses both feminine and masculine pronouns inits provisions and it stresses in Article 2(1) that : “State parties shallrespect and ensure the rights set forth in the present Convention to eachchild within their jurisdiction without discrimination of any kind, irrespectiveof the child’s … sex.” Among the rights that States Parties mustprotect regardless of sex, are: the right to life; the right to be free fromviolence, mistreatment and exploitation while under the care of a parentor other guardian; the right to be free from harmful traditional practices;the right against sexual exploitation and abuse; and the right against torture.Importantly, Article 39 provides that “States Parties shall take allappropriate measures to promote physical and psychological recovery andsocial reintegration of a child victim of: any form of neglect, exploitation,or abuse; torture or any form of cruel inhuman or degrading treatment orpunishment; or armed conflicts. Such recovery and reintegration shall takeplace in an environment which fosters the health, self-respect and dignityof the child.”The reporting guidelines of the Committee on the Rights of the Child containan umbrella clause which requests States Parties to provide genderspecificinformation, statistical data and indicators on various issuescovered by the Convention on the Rights of the Child. The particular situationof the girl child is also addressed more specifically in certainArticles. For example, with respect to Article 1 of the Convention (definitionof the child), the Committee on the Rights of the Child has identifiedgender-specific issues of particular relevance to the girl child, including,for example, the minimum age for marriage, which can be problematicwhere it is set at a very young age for girls. With respect to Article 2(non-discrimination), States Parties are requested to provide information199

Violence Against Women: 10 Reports / Year 2003“on the specific measures taken to eliminate discrimination against girlsand when appropriate indicate measures adopted as a follow-up to theFourth World Conference on Women.” 1Eritrea ratified the Convention on the Rights of the Child in April 1994,shortly after gaining its independence from Ethiopia. However, OMCTnotes with concern that Eritrea has not ratified the Optional Protocol tothe Convention on the Rights of the Child on the involvement of childrenin armed conflict, which is particularly relevant for Eritrea because of itslong history of hostilities with Ethiopia. Eritrea has also failed to sign theOptional Protocol to the Convention on the Rights of the Child on the saleof children, child prostitution and child pornography.With regard to girls, Eritrea has acceded to the Convention on theElimination of All Forms of Discrimination Against Women (September1995). However, OMCT regrets that Eritrea is not a party to the OptionalProtocol, which provides the framework for the Committee on theElimination of Discrimination Against Women to hear individual complaintsand to conduct inquiries into grave systematic violations ofwomen’s rights.Notably, the government of Eritrea has failed to sign the ConventionAgainst Torture. Eritrea has ratified the International Covenant onEconomic, Social and Cultural Rights (April 2001), the InternationalCovenant on Civil and Political Rights (January 2002), and theInternational Convention on the Elimination of All Forms of RacialDiscrimination (August 2001).Eritrea gained independence in April 1993 through a referendum after 30years of war with Ethiopia. Since that time, the conflict between Eritreaand Ethiopia has continued, eventually resulting in the establishment of aUN Mission for the two countries in 2000 to help keep the peace. 2 Thecontinuous state of conflict in the region has been detrimental for thehuman rights of Eritreans in general. It has been reported that humanrights abuses, committed by both Eritreans and Ethiopians, during theyears of fighting, were rampant. More recently, in Eritrea, there has beenincreasing oppression of free speech and freedom of assembly, as well asproblems with arbitrary arrests and detentions. In particular, reports indicatethe growing persecution of journalists and dissidents 3 leading toEritrea’s label as the only country in Africa without a private press. 4200

EritreaThere are also reports of detentions without trial and unfair trials. 5The State report from the government of Eritrea to the Committee on theRights of the Child, U.N. Doc. CRC/C/41/Add.12 (2002), specifically recognizesdiscrimination against the girl child in several respects, includingthe prevalence of female genital mutilation (FGM), the common occurrenceof early marriages for girls, division of labor in the home whichputs an undue burden on the girl child, disparities in education betweengirls and boys, and the particular effect of armed conflict on the girlchild. 6 While OMCT commends the government for its candour concerningsome of the gender-specific problems faced by girl children, itremains concerned that domestic violence and incest are not adequatelyaddressed and there is also insufficient information concerning the occurrenceof rape.This report will focus on the linkage between gender and violence againstgirls in Eritrea. Attention is given to the manner in which gender and ageshape the form of violence, the circumstances in which this violenceoccurs and its consequences. Specific attention is given to domestic violence;traditional practices that violate the human rights of girls, includingfemale genital mutilation; rape; child soldiers and girls in emergency situations.2. Status of Women and GirlsThe Constitution of Eritrea has strong protections of women’s rights, areflection of the high status women attained by participating in theliberation struggle as fighters. However, the respect women gainedthrough the war and the resulting gender sensitive laws are indirect contrast to the traditional Eritrean attitude towards women andgirls.Provision for women’s rights begins with the Preamble of theConstitution: “Noting the fact that the Eritrean women’s heroicparticipation in the struggle for independence and solidarity based onequality and mutual respect generated by such struggle will serve as anunshakable foundation for our commitment and struggle to create a societyin which women and men shall interact on the bases of mutual respect,201

Violence Against Women: 10 Reports / Year 2003fraternity and equality.” The Constitution also provides for the interpretationof the Constitutional language so that it applies equally to men andwomen (Article 5), the protection of women’s human rights (Article 7),the prohibition of discrimination on the basis of sex (Article 14), andequality in family life (Article 22). However, despite these strong protections,the government applies these laws in an unbalanced way, resultingin inadequate protection of women’s rights, because of deeply entrenchedcultural attitude towards women and an ineffective judicial system. 7Because of Eritrea’s recent establishment as a nation, the laws of countrycontinue to be in transition. The Transitional Codes are in the process ofbeing revised and Draft Penal, Civil, Civil Procedure, Criminal Procedureand Commercial Codes have been developed but they have not yet comeinto force. Where appropriate, this report examines the law under theTransitional Code and notes whether the Draft Code foresees changeswith respect to that law.Although Eritrea is composed of several different cultures, with differingperspectives towards women, customary views generally dominate manyareas of society and are often discriminatory towards women and girls.This is especially true within the realm of the family, and is thus, extremelyimportant when examining the rights of girls. For example, beginningat age 3-4, girls are accorded different treatment than boys as they arekept within the home while boys are able to play outside. By age 5, girlshave begun to learn household chores and they move more towards theirtraditional domestic role, including “caring for their siblings, fetchingwood and water, cooking, grinding, washing, and weaving baskets.” 8Many families anticipate that girl children will eventually leave their familiesto go to their husbands’ families and therefore, the girls’ families arehesitant to “invest” in the education and the future of girls. 9 Additionally,under customary law, girls are subjected to several harmful practices, suchas, female genital mutilation (about 90% of all women in Eritrea havebeen circumcised), early marriage, dowry payments, and polygamousmarriages.The Eritrean State report acknowledges that, according to customary law,women hold an inferior position in society. The Eritrean government hasattempted to counteract strong traditional patriarchal attitudes towardswomen by initiating special programs for women, especially women who202

Eritreaare ex-fighters. For example, affirmative action policies have been set upto give women 30% of the seats in the National and RegionalAssemblies. 10 Nevertheless, customary practices often prove to bestronger than these laws protecting the rights of women. In addition, withabout 50% of the population being practicing Muslims, 11 Sharia law isapplied in some parts of Eritrea, which often excludes women from higherdecision-making positions. 12Girls’ education continues to loom behind boys’, with female literacy at45% and male literacy at 67%. This is attributable to many reasons. Forexample, education is expensive for many in Eritrea and families thuschoose to send boys to school instead of sending girls. Additionally, thereare not many schools and there is a lack of female teachers. Finally, parentsare reluctant to send their daughters to school for fear that the girlswill lose their traditional values and thus not be able to attract a husband.13 When girls do attend school, it is unlikely that they will finishtheir education because of the prevalence of early marriages. 14 This, ofcourse, limits the opportunities afforded to women later in life.With respect to property rights, under customary law, women do not havethe right to own or inherit land. Reports indicate that the government is inthe process of implementing a law that will combat this discriminationagainst women, but the law has taken a long time to have any effect. 15Abortion is illegal in Eritrea even in cases of rape or incest. 16 The generalpopulation in Eritrea remains unaware of various family planning options.Although the government of Eritrea has reportedly taken a strong stancein favor of family planning, forming the Family Planning Association in1992, adolescent pregnancies and unsafe abortions are becoming progressivelymore serious problems. 173. Violence Against Girls in the Family3.1 Domestic ViolenceThe government of Eritrea has yet to address domestic violence in a comprehensiveway, although spousal abuse is considered a crime. 18 The203

Violence Against Women: 10 Reports / Year 2003Draft Penal Code also does not envision a legal scheme to outlaw domesticviolence, favoring awareness raising campaigns instead. 19 Victims ofdomestic violence can initiate a case against their perpetrators under theassault provisions of the Transitional Penal Code.Domestic violence appears to be a grave problem in Eritrea despite limitedamounts of information on the topic. Because of the prevalence ofearly marriages in Eritrea, domestic violence is a pertinent subject concerningviolence against girls in Eritrea. Girls, when married before theage of 18, are at greater risk of physical and psychological violence perpetratedby their husbands or other members of their extended families.According to one study, conducted in 2001 in the Central Region ofEritrea, 40% of women have been victims of domestic violence. 20 As ofthat time, there were no counseling or mediation services provided fordomestic violence victims, nor were there any legal aid mechanisms forwomen who wanted to press charges. Additionally, that study indicatedthat prosecution for domestic violence will only be pursued where theviolence is life-threatening, meaning that a weapon must be used. 21Another regional study indicated that as many as 90% of women are subjectto domestic violence. 22 Specifically, most interviewees in the studyestimated that the rate of “sexual and gender-based violence” is between5% and 25%. However, it was pointed out that these estimates wouldchange drastically, resulting in a 90% prevalence rate, if domestic violencewas included within the definition of “sexual and gender-based violence.”23Very few women will report incidents of domestic violence to the authoritiesbecause issues of sexual violence are not openly discussed in Eritreansociety. 24 If a woman does speak out, she will most likely turn to a neighboror a friend, in which case, the neighbor or friend often makes an effortto reconcile the couple. 25OMCT is extremely concerned about the prevalence of domestic violencein Eritrea and is disappointed with the lack of specific legislation addressingthis form of violence and the lack government services to assist victims.It seems that women are not aware of their rights or cannot speakpublicly about the crime because of societal pressures. The governmenthas, under international law, an obligation to protect children from vio-204

Eritrealence in the home, to exercise due diligence in establishing an effectiveframework to receive complaints and prosecute cases of domestic violence,and to create mechanisms that educate women about their rightsand remedies when they are victims of domestic violence.The Convention on the Rights of the Child obligates all States Parties totake all appropriate measures to protect children from “all forms of physicalor mental violence” in the family. Additionally, the Declaration on theElimination of Violence Against Women explains that States have a dutyto exercise due diligence in investigating all incidents of violence againstwomen whether perpetrated by the State or by private persons. To thisend, the Declaration notes that States should develop legislation to outlawdomestic violence, ensure that victims of domestic violence have accessto the judicial system, provide domestic violence victims with “just andeffective remedies,” and inform women of their right to be free from suchviolence.3.2 Marital RapeMarital rape is not a crime under Eritrean law, as the Transitional PenalCode provides in Article 589 that rape, by definition, must occur outsideof marriage. 26 The Draft Penal Code foresees a slight change in this definition,recognizing rape between spouses where the spouses are separatedand living in different households.OMCT is gravely concerned that marriage, when the spouses are livingtogether, relieves a husband who rapes his wife of criminal responsibility.The impunity enjoyed by a husband who forces his wife to have sexualintercourse nullifies the enjoyment by women of their right to equality inmarriage and heightens the risk of violence in the home.The Special Rapporteur on Violence Against Women, it Causes andConsequences noted in her 2002 annual report that, in many countries,husbands can be prosecuted for assaulting their wives but not for rapingtheir wives. She explains that under international norms, men and womenare entitled to equal rights and responsibilities in marriage 27 and laterasserts that the failure to criminalize marital rape is, in effect, “sanctioninga certain measure of violence by the husband against the wife in thehome.” 28 205

Violence Against Women: 10 Reports / Year 20033.3 Honour CrimesAccording to one study, girls who become pregnant before marriage aresometimes vulnerable to violence. In the Gash-Barka region, pregnancybefore marriage is viewed as a crime and pregnant girls may be kicked outof the home, beaten, stoned, or even killed. 29This type of violence is gender specific since only women and girlsbecome pregnant and there is no report that the boys and men whoimpregnate the women are similarly treated. OMCT is deeply concernedby these reports of violence against women and girls who become pregnantbefore marriage.3.4 Cultural Practices in the Family that Violate the Human Rightsof Girls3.4.1 Early MarriageEritrean civil law provides that the minimum age for marriage for bothgirls and boys is 18. Nevertheless, customary law carries great weight inEritrean society and often girls are married at ages well below the legallimit.It is widely acknowledged in Eritrea that girls are married earlier thanboys. 30 The traditional view holds that the ideal age for marriage for a girlis between 12 and 18. 31 In one study, the view was expressed that marryinggirls at a young age was necessary to ensure their virginity beforemarriage and protect “the woman from sin.” 32 The ideal age for marriagefor men is not correspondent with that of women. In the study mentionedabove, many respondents claimed that men should wait until they arebetween at least 20 and 25, with some asserting that 25 be the minimumage, because of the many responsibilities a man assumes once he is married.33 The big age difference created by these varying ideal ages resultsin a relationship where the girl is considerably younger than her spouseand lacks power both because of her age and because of her sex. Earlymarriage can also hamper a girl’s access to education. Additionally, earlymarriage can lead to early pregnancy and a prolonged reproductive life,and these factors combined often result in negative health consequencesfor both the mother and her children.206

Eritrea3.4.2 DowryReports also indicate that the practice of making dowry payments continuesin Eritrea. 34 Such a practice may lead to discrimination against girlsand women in the domestic sphere because the husband and his familymay feel that they have a right to her domestic services, relegating thegirl’s status to little more than a piece of chattel. The Special Rapporteuron Violence Against Women, its Causes and Consequences, in her 2002annual report, recognised that the practice of dowry payments can lead toabuse of women because of the perception of women as property. 353.4.3 PolygamySome parts of Eritrea apply Sharia law, which allows men to take up tofour wives. According to the Marriage Law introduced by the EPLF in1977, 36 polygamy is illegal in Eritrea. Despite the formal illegality ofpolygamy in Eritrea, Sharia law is exempt from this law and thus polygamousunions (up to four wives) are permitted for people marrying underSharia law. 37 The practice of polygamy threatens women’s human rightsbecause, with it being against the law, only one of the wives can have aregistered marriage and the accompanying rights of such a marriage. Theother wives have religious marriages which are not accorded protectivelegal rights.General Recommendation #21 issued by the Committee on theElimination of Discrimination Against Women states that “[p]olygamousmarriage contravenes a woman’s right to equality with men, and can havesuch serious emotional and financial consequences for her and her dependentsthat such marriages ought to be discouraged and prohibited” andasserts that polygamy is a violation of CEDAW. While OMCT commendsEritrea’s early decision to outlaw the practice, an effort to raise awarenessabout the problems of polygamy, and to encourage women and men tocease the practice, must be instituted.3.4.4 Female Genital MutilationAccording to the World Health Organisation, female genital mutilation(FGM) is defined as comprising “all procedures involving partial ortotal removal of the external female genitalia or other injury to the female207

genital organs for cultural or other non-therapeutic reasons.” 38 Factorssuch as religion, nationality and ethnicity result in differing practices concerningFGM. Because FGM varies across regional and ethnic lines, fourclassifications have been recommended by the World Health Organisationin order to clarify and standardize the terminology.Type I: Clitoridectomy: Excision of the prepuce, with orwithout excision of part or all of the clitoris.Type II: Excision: Excision of the prepuce and clitoris withpartial or total excision of the labia minora.Type III: Infibulation: Excision of part or all of the externalgenitalia and stitching/narrowing of the vaginal opening.Type IV: Unclassified: includes pricking, piercing, or incisingof the clitoris and/or labia; stretching of the clitorisand/or labia; cauterisation by burning of the clitoris and surroundingtissues; scraping of tissue surrounding the vaginalorifice (angurya cuts) or cutting of the vagina (gishiri cuts);introduction of corrosive substances or herbs into the vaginato cause bleeding or for the purpose of tightening or narrowingit; and any other procedure that falls under the definitionof female genital mutilation. 39FGM is extremely common in Eritrea with about 89% of all girls andwomen having experienced this practice. Around 60% of women havehad clitoridectomies, one third have been infibulated and 4% have undergoneexcision. Girls are usually circumcised several days after they areborn, 40 although it can be performed any time up to when the girl is 12years old. 41 Some women also get re-infibulated after giving birth. 42Violence Against Women: 10 Reports / Year 2003FGM has serious physical and psychological consequences and it hasbeen widely condemned by health professionals around the world. Theprocedure is often performed by women in the community who are notmedical professionals and they frequently use “crude” instruments such asrazor blades, knives and needles. Many circumcised women have severemedical problems during childbirth. In particular, 19% of women experiencedhealth problems during pregnancy and delivery. 43 In Eritrea, girlswho are not circumcised are socially alienated and commonly viewed bythe larger community as “impure, unmarriageable, sexual deviants orprostitutes.” 44208

EritreaThe reasons given for supporting the practice of FGM include religion,custom, tradition, virginity preservation and deterrence of immorality. 45Additionally, as mentioned above, the procedure is consideredan essential social element of marriage. Although the vast majorityof women have experienced FGM, many women do not support the practice.46 This demonstrates the weakened status of FGM, a trend that is alsoreflected in recent initiatives to raise awareness aboutthe harmful consequences of FGM. For example, UNICEF, incollaboration with the National Union of Eritrean Women and theNational Union of Eritrean Youths and Students, has implemented a strategyto eliminate FGM in Eritrea. 47 The plan includes the following goals:to“identify and mobilize partners for FGM eradication; developcapacity for planning and implementationof effective communication programmes; strengthendissemination of FGM eradication messages in health facilities[and in communities] . . .; integrate FGM eradicationmessages in activities of selected institutions . . .; developand use effective IEC (information, education and communication)materials to promote FGM eradication messages;[and] develop communication supervision and monitoringsystems and use information collected for programmeimplementation.” 48While OMCT commends the efforts being made to raise awareness aboutFGM and its harmful effects on girls and women, there is still no law inEritrea outlawing the practice. 49 It is essential that the government attackthe problem of FGM on multiple levels, thus social awareness programmesmust be accompanied by legal change to prohibit the practiceand protect women.3.5 Sexual Abuse and IncestArticle 594-599 of the Eritrean Penal Code provides harsh penalties forsexual acts involving children. However, these punishments are rarelyexercised because such crimes are seldom reported.There is a lack of information concerning sexual abuse and incest withinthe family. The government report claims that the problem is209

Violence Against Women: 10 Reports / Year 2003“unknown,” 50 but recognizes that with no available statistics on the subject,it is impossible to conclude that the problem is non-existent.Although the government report claims that Eritrean tradition imposesharsh penalties for people who abuse children, research on this topic isabsolutely essential for ensuring protection of children within the family.Notably, the government foresees a study on child abuse within the nextfour years in a joint plan between the government and UNICEF. OMCTurges the government to give priority to such a study as its results areessential for assessing the situation of children, especially girls, in Eritrea.4. Violence Against Girls in the Community4.1 Child Sex WorkersThe presence of girls in the commercial sex business is an increasingproblem in Eritrea. The Eritrea State report recognizes that at least5% of all commercial sex workers are under the age of 18. 51 It is, however,difficult to determine the true number of girl sex workers. The numberof girls in the commercial sex business is often a reflection of girls whoare separated from their parents at an early age for various reasons,including “desire to find a better job, avoidance of early marriage, divorceof parents, family abuse, and rejection by parents if the girl is pregnant.” 52After being separated from their parents, girls become street children orbar girls, and generally find themselves in situations of extreme poverty.These circumstances eventually lead to their entry into the commercialsex business, poverty being the reason most often cited for becoming aprostitute.Girl sex workers are particularly vulnerable to sexual violence and abuse.Additionally, because they are ostracized by society, they are susceptibleto psychological harm and stunted development. With very few child sexworkers being aware of the need for contraception, they are also atextreme risk of contracting HIV/AIDS and other sexually transmitted diseases.53The government has instituted a National Action Plan for the Prevention,Rehabilitation and Reintegration of Commercial Sex Workers and it is210

Eritreacurrently being implemented. UNICEF, in conjunction with the Ministryof Labour and Human Welfare, is also concentrated on this “at risk” population.OMCT welcomes these efforts to curb the growing problem ofchild sex workers and encourages the government to make this issue a priorityin the future.4.2 RapeThe Transitional Penal Code of Eritrea provides for certain elements ofthe crime of rape in Article 589. These are: (1) force or violence mustbe present, (2) the victim must be a woman, (3) the intercourse must bebetween unmarried persons, and (4) force may be implied where thewoman is unconscious or incapable of resisting the rape. Additionally,rape can have aggravating circumstances such as if (1) the victim is under15 years of age, (2) the person is disabled, or (3) there are multipleperpetrators. 54 Rape is a public offense, which means that the public prosecutorhas control over the case since it is in the interest of publicsecurity. 55OMCT notes that although there is no explicit definition of rape accordingto codified international treaty law, international norms defining the elementsof this crime have arisen. In particular, rape has been recognized asa crime not only where force or violence are present, but also where thethreat of violence or other forms of coercion are present. This is extremelyimportant as violence does not always accompany the act of rape, but thethreat of violence or other forms of coercion force women into sexualactions, because of lack of power and fear. These situations should not beexcluded from the crime of rape. Moreover, the requirement of violenceand force may place a large part of the burden of providing proof of theviolence or force (in the form of bruises) on the rape victim.There is little information concerning rape in Eritrea, but one study indicatesthat young women are particularly vulnerable to sexual violence inthe community, including rape, and that rape and attempted rape are commonoccurrences in areas where refugees and returnees are living. 56Although many Eritreans claim to condemn rape, the report found thatvillage elders who handle rape cases often impose no punishment on theperpetrator. 57 211

Despite the lack of information concerning rape, some reports indicate acultural attitude towards this crime that focuses on its shamefulness, leadingto silence on the part of the victim about the crime. Especially if thewoman is not married, since virginity is seen as an absolute requirementto being married, raped women are often perceived as “unmarriageable.”58 The study, mentioned in the previous paragraph, reported thatmany of the respondents believed sexual violence, including rape, to bereported in most circumstances, although not by the victim herself butrather by her family members. 59 Nevertheless, the same study revealedthat most communities were unwilling to discuss sexual violence, consideringit a “shameful” topic and “against their culture.” 60 The silence withrespect to rape forces women to endure this physical and psychologicalharm alone. These attitudes may also explain the lack of informationavailable on the topic.In addition, OMCT is gravely concerned that if the perpetrator agrees tomarry the victim, all charges of rape will be dropped. 61 This method ofescaping punishment degrades the rape victim further by subjecting her tomarry her perpetrator, possibly leading to forced marriage, implies thatnon-consensual sex is permissible within a marriage relationship andallows the perpetrator to enjoy impunity. It has been noted that the originalpurpose of this provision was to protect the victim because of the stigmaattached to rape victims and their subsequent inability to find ahusband. 62 Recognizing that this article has been abused and that marriagesbetween rapists and rape victims do not last, the government hopesto repeal this provision with the passage of the new Penal Code.Violence Against Women: 10 Reports / Year 2003The Draft Penal Code envisages other changes to the law concerning rape,specifically recognizing that victims of rape can be male or female,acknowledging rape between spouses where they are separated, and providingfor a minimum sentence for the crime rather than only a maximumsentence. 63212

Eritrea5. Violence Against Girls in Armed Conflict5.1 Child SoldiersThe Eritrean Constitution makes it an obligation of every citizen to “completeone’s duty in the National Service” 64 and the National ServiceProclamation asserts that military service is mandatory for both males andfemales between the ages of 18 and 40. It is further reported that about35% of the armed forces in Eritrea is female. 65The Coalition to Stop the Use of Child Soldiers, an international NGO,has reported that children remain at risk of being recruited into the militaryin Eritrea. 66 They have also received several reports that child soldiershave been used in Eritrea in the recent conflict with Ethiopia.Although the government denies recruiting child soldiers, it acknowledgesthat children do sometimes end up in the military because the countrylacks a mechanism for systematic birth registration. Many of the fightersin the conflict with Ethiopia remain mobilized and this delay in demobilizationleads to concerns that, even if the government is no longer activelyrecruiting children, there may still be children in the armed forces ofEritrea. 67Eritrea is unique in that women fighters have greatly participated in thearmed conflict that led to Eritrea’s independence as well as the subsequentconflicts. Interviews with female combatants have indicated that somejoined the military service as minors during the war of independence. 685.2 Girls in Emergency SituationsThe conflict between Eritrea and Ethiopia has created special vulnerabilitiesfor children, especially girls. Girls have the misfortune of beingfemale and young, two population groups that are particularly susceptibleto violence, especially in times of emergency. Reports indicate that manygirls and young women were raped during the most recent war withEthiopia (1998-2000). The government acknowledges in its report thatsexual violence was widespread during the conflict and claims that thecommunity is serving many of the important psychological needs of thevictims of war. While the community structures may be “holding213

Violence Against Women: 10 Reports / Year 2003strong” 69 in some aspects for the traumatized victims of war, with respectto rape, it is reasonable to infer that the community is neglecting theneeds of the girls and young women because the prevailing social view ofrape focuses on its shamefulness and leads to suffering in silence by thevictim. 70 The government must take greater strides to encourage moreopenness about the crime of rape so that it will be reported and prosecutedmore frequently.6. Conclusions and RecommendationsThe government of Eritrea has made numerous commitments at thenational and international levels for the promotion and protection of allhuman rights and OMCT welcomes the fact that Eritrea has quickly ratifiedseveral international human rights instruments. OMCT regrets thatEritrea has not signed on to the Convention Against Torture. OMCT isalso disappointed that Eritrea has yet to sign the Optional Protocols to theConvention on the Rights of the Child, the Optional Protocol to theConvention on the Elimination of All Forms of Discrimination AgainstWomen, nor the Optional Protocols to the International Covenant on Civiland Political Rights.OMCT commends the Eritrean government’s efforts to ensure de jureequality for girls and women, but remains concerned that the reality isthat girls and women in Eritrea do not enjoy equal status with boys andmen. Serious efforts must be made by the government to counteract traditionalpractices and cultural attitudes that discriminate against girls andwomen and restrict their enjoyment of their human rights. In particular,because much violence against women is sexual violence, it is importantthat the government institute measures to encourage girls, women, boysand men to discuss sex and issues related to sex more freely, therebydetaching the shame that often accompanies violence against girls andwomen.OMCT is concerned that Eritrea has yet to pass legislation specificallyaddressing domestic violence. While the envisioned awareness-raisingcampaigns are important in fighting domestic violence, comprehensivelegislation is absolutely necessary in order to effectively protect girls andwomen from this form of violence. This legislation should be developed214

Eritreain accordance with the guidelines submitted by the United NationsSpecial Rapporteur on Violence against Women to the fifty-second sessionof the United Nations Commission on Human Rights in 1996 (UNdoc. E/CN/.4/1996/53, Add.2).OMCT is deeply troubled that marital rape is not currently a crime inEritrea and that the Draft Penal Code only envisions recognizing thiscrime where the spouses are separated. Marriage and cohabitation shouldnot provide impunity for men who rape their wives. The absence of criminallegislation concerning marital rape while the spouses are livingtogether is a denial of women’s right to be free from violence in the homeand OMCT insists on the need for marital rape to be criminalized in allsituations, including where the spouses live together.Equally disturbing are reports that girls and women who become pregnantbefore marriage can be subject to violence, sometimes fatal violence. TheEritrean government must take steps to protect girls and women whobecome pregnant before marriage from such violence, and where suchviolence occurs, exercise due diligence to ensure that the crime is investigatedand that the perpetrators are punished accordingly.Several traditional practices continue to occur in Eritrea, which violate thehuman rights of girls and women. OMCT is concerned by reports thatindicate a high rate of early marriage in Eritrea. The government muststrictly enforce the minimum age of marriage, which is 18 for both girlsand boys, in order to protect girls from the harms associated with earlymarriage. The government of Eritrea must also be rigorous in its enforcementof the ban on polygamy. Additionally, the practice of making dowrypayments can lead to discrimination against girls and women, and canmake girls and women vulnerable to violence within the family. OMCTinsists on the need to ban all of these practices and suggests that the governmentinstitute programs to raise awareness about the ways that thesepractices can jeopardize the full enjoyment of rights by girls and women.While OMCT commends the Eritrean government’s efforts to eradicateFGM through public awareness campaigns, it is equally important to outlawthe practice. Such a law should provide protections to girls andwomen who choose not to undergo the surgery and punish persons whosubject girls and women to this practice.215

Violence Against Women: 10 Reports / Year 2003OMCT is disappointed with the lack of information concerning incest andsexual abuse within the home, but is encouraged that the government foreseesa research project on this topic. OMCT urges the government toaccord this research a top priority as it is essential in understanding thesituation of girls in Eritrea and the problems they face.OMCT welcomes efforts by the government with respect to childreninvolved in the commercial sex business and encourages the governmentto maintain concentration on this issue.OMCT is gravely concerned that the current definition of rape requiresforce or violence, only recognizes rape of a woman, and does not recognizemarital rape. While the Draft Penal Code envisions some improvements,namely the recognition that males can be raped andacknowledgement of marital rape when the spouses are separated, thereremain several issues of concern. Firstly, OMCT insists on the need torecognize rape in situations of coercion or threat of violence, which effectivelyforce a woman to engage in sexual acts because of a lack of powerand/or fear. Additionally, as mentioned above, OMCT insists that rapewithin marriage must be recognized regardless of whether the spouses areliving together.Further, the government of Eritrea should encourage women and men inEritrea to speak out against rape, create an atmosphere conducive for rapevictims to come forward with their claims without repercussions, prosecutecharges of rape with diligence, and gather more information on thefrequency of this crime in order to effectively combat its occurrence.OMCT insists the absolute prohibition of the use of child soldiers andurges the government of Eritrea to institute a system of birth registrationto avoid recruiting minors. OMCT further notes with regret that Eritreahas yet to sign the Optional Protocol to the Convention on the Rights ofthe Child on the involvement of children in armed conflicts and urges thegovernment to sign the Optional Protocol immediately, as it is an essentialtool in the effort to stop the use of child soldiers.OMCT notes with concern that the government has not taken action toassist victims of sexual violence during the war. Because of the cultural ofsilence surrounding the issues of sexual violence, OMCT recommendsthat the government make greater efforts to ensure that girls and women216

Eritreawho were victims of sexual violence during the war have access to adequatesocial, medical and psychological services.Finally, OMCT would insist upon the need for the Government to fullyimplement the Convention on the Elimination of All Forms ofDiscrimination Against Women, the Beijing Rules and Platform forAction and the Declaration on the Elimination of Violence AgainstWomen as these instruments provide detailed protection for womenagainst violence in the family, in the community and at the hands of Stateofficials.1 UN Doc. CRC/C/58, para. 28.2 See United Nations Mission in Ethiopia and Eritrea, available athttp://www.un.org/Depts/dpko/missions/unmee/background.html.3 Human Rights Watch, Eritrea : Cease Persecution of Journalists and Dissidents(May 16, 2002).4 Written Statement Submitted by Reporters Sans Frontières International, UNDoc. E/CN.4/2002/NGO/137.5 Amnesty International, Annual Report 2002, Eritrea.6 UN Doc. CRC/C/41/Add.12 (2002).7 See AFROL Gender Profiles : Eritrea, available athttp://www.afrol.com/Categories/Women/profiles/eritrea_women.htm.8 UNICEF Eritrea Briefing Report on Violence Against Children and Women inEritrea (2002), prepared for OMCT in response to requests for information; seealso Charles M. Smith, Women and Education in Eritrea: Society andDevelopment, Research Paper 2001.9 HABEN and CARE International, Sexual and Gender-Based Violence in GashBarka: A Qualitative Study (May 2002), p. 4.10 Ministry of Education, Education for All in Eritrea: Policies, Strategies andProspects (DRAFT), September 1999, available athttp://www2.unesco.org/wef/countryreports/eritrea/contents.html.11 Presbyterian Church, Ecumenical Partnership, Eritrea, available athttp://www.pcusa.org/pcusa/wmd/ep/country/eridemo.htm.12 See Women’s Rights in Islam, available at http://www.csiw.org/Islam13.htm.13 UNICEF, Girls’ Education in Eritrea, available at www.unicef.org.14 HABEN and CARE International, Ibid., p. 5.15 Tsehainesh Tekle, Women’s Access to Land and Property Rights in Eritrea(February 1998)16 Eritrea, Abortion Policy, http://www.un.org/esa/population/publications/abortion/doc/eritre1.doc217

Violence Against Women: 10 Reports / Year 200317 Ibid.; see also International Planned Parenthood Federation, Country Profiles,Eritrea, http://ippfnet.ippf.org/pub/IPPF_Regions/IPPF_CountryProfile.asp?ISOCode=ER18 U.S. Dep’t of State, Country Reports on Human Rights 2001, Eritrea (2002)19 Muluberhan Berhe, Rape, Domestic Violence, Marriage and Female GenitalMutilation (FGM) Under Eritrean Laws (2003), paper prepared in response toquestions from OMCT, p. 6.20 UNICEF Eritrea Briefing Report, Ibid. (citing study by University of Asmara,2001)21 Ibid. (citing study by University of Asmara, 2001)22 HABEN and CARE International, Ibid., p. 6.23 HABEN and CARE International, Ibid.24 HABEN and CARE International, Ibid. (“No one spoke of punishment for peoplewho assault their wives; it seems from responses to other questions that these incidentsare not reported”); U.S. Dep’t of State, Ibid.25 HABEN and CARE International, Ibid., p. 7.26 Muluberhan Berhe, Ibid., p. 1.27 UN Doc. E/CN.4/2002/83, para. 6228 Ibid., para. 10129 HABEN and CARE International, Ibid., p. 5.30 Atsuko Matsuoka and John Sorenson, After Independence : Prospects for Womenin Eritrea (1999)31 UNICEF Eritrea Briefing Report, Ibid. (reporting that ideal age for marriage forgirls is between 12 and 15); HABEN and CARE International, Ibid., p. 3 (studynoting that most people interviewed claimed that “women should marry at around16-18 years”)32 HABEN and CARE International, Ibid., p. 3.33 HABEN and CARE International, Ibid., p. 25.34 Charles Smith, Ibid.; Atsuko Matsuoka & John Sorenson, Ibid. (noting that practiceof paying dowries continues but is now described as a “friendly exchange ofgifts between families”); HABEN and CARE International, Ibid.35 E/CN.4/2002/83, para. 60.36 Cathy Green & Sally Baden, Gender Profile of the State of Eritrea (February1994) (Bridge report).37 Muluberhan Berhe, Ibid., p. 7.38 WHO, Female Genital Mutilation : An Overview, 1998.39 Ibid.40 Rachel Osede & Eden Asghedom, The Continuum of Violence Against Women inEritrea, 44 Development 3, p. 69 (2001).41 UNICEF Eritrea Briefing Report, Ibid.42 Osede & Asghedom, Ibid.43 Ibid.218

Eritrea44 UNICEF Eritrea Briefing Report, Ibid45 Osede & Asghedom, Ibid.46 UNICEF Eritrea Briefing Report, Ibid; Osede & Asghedom, Ibid.47 UNICEF Eritrea Briefing Report, Ibid.48 Ibid.49 Center on Reproductive Law and Policy, Female Genital Mutilation: A Matter ofHuman Rights (2000), http://www.crlp.org.50 UN Doc. CRC/C/41/Add.12 (2002), p. 96.51 Ibid.52 UNICEF Eritrea Briefing Report, Ibid.53 Ibid.54 Muluberhan Berhe, Ibid., p. 1-2.55 Ibid., p. 2.56 HABEN and CARE International, Ibid., p. 6, 957 UNICEF Eritrea Briefing Report, Ibid. (citing report by HABEN/CAREInternational entitled Sexual and Gender-Based Violence in Gash-Barka, 2002)58 UNICEF Eritrea Briefing Report, Ibid.59 HABEN and CARE International, Ibid., p. 7.60 HABEN and CARE International, Ibid., p. 47-49.61 Immigrant Women’s Support Service, Ibid.62 Muluberhan Berhe, Ibid., p. 5.63 Ibid., p. 4-5.64 Eritrean Constitution, Article 2565 Coalition to Stop the Use of Child Soldiers, Child Soldiers 1379 Report(November 2002), Eritrea, http://www.child-soldiers.org66 Child Soldiers 1379 Report, Ibid.67 Ibid.68 Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2001,Eritrea, http://www.child-soldiers.org69 Eritrea State Report to CRC, UN Doc. CRC/C/41/Add.12 (2002), p. 86 (the governmentacknowledges that the study cited does not assess the impact of rape onthe well-being of Eritrean girls, but does not specify any steps taken to specificallyaddress the needs of these victims).70 UNICEF Eritrea Briefing Report, Ibid.219

Violence Against Women: 10 Reports / Year 2003Committee on the Rightsof the ChildTHIRTY-THIRD – DATE 19 MAY - 6 JUNE 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 44 OF THE CONVENTIONCONCLUDING OBSERVATIONS BY THE COMMITTEE ON THE RIGHTS OF THECHILD: ERITREA1. The Committee considered the initial report of Eritrea(CRC/C/41/Add.12) at its 865th and 866th meetings (CRC/C/SR.865and 856), held on 20 May 2003 and adopted, at the 889th meeting(CRC/C/SR.889), held on 6 June 2003, the following concludingobservations.A. Introduction2. The Committee welcomes the submission of the State party’s comprehensiveand well-written initial report, as well as the detailed writtenreplies to its list of issues (CRC/C/Q/ERI/1), which gave a clearerunderstanding of the situation of children in the State party. It furthernotes with appreciation the high-level delegation sent by the Stateparty and welcomes the frank dialogue and the positive reactions tothe suggestions and recommendations made during the discussion.B. Positive aspects3. The Committee notes with appreciation the State party’s successfulefforts, following its independence in 1993:220

Eritrea(a) To reduce child mortality by over 50 per cent and increase immunizationcoverage from 10 to 60 per cent;(b) To increase enrolment and literacy rates, and the introduction ofthe mother tongue as a language of instruction in primaryschools;(c) To develop programmes to improve girls’ access to education,including through participation in the African Girls EducationInitiative;(d) To develop a strategy and programmes to combat female genitalmutilation;(e) To provide alternative care, while avoiding institutionalization, ofchildren that have been orphaned due to past armed conflicts.4. The Committee welcomes the State party’s accession in 2001 to theConvention on the Prohibition of the Use, Stockpiling, Productionand Transfer of Anti-Personnel Mines and on their Destruction of2001 and its ratification of ILO Convention, 1973 (No. 138) in 2000.C. Factors and difficulties impeding the implementation ofthe Convention5. The Committee recognizes that the continuing effects of past armedconflicts as well as the current drought, poverty and structural adjustmentprogrammes present difficulties with respect to the full implementationof the Convention in the State party.D. Principle areas of concern and recommendations1. General measures of implementationLegislation6. The Committee welcomes the creation of the Child Law Committee221

Violence Against Women: 10 Reports / Year 2003to examine the compatibility of domestic legislation with theConvention and also notes that the new Constitution generally conformsto the principles and provisions of the Convention. However,the Committee remains concerned that to a large extent customarylaws and traditions, and in some cases newly enacted legislation andtransitional codes still in force do not fully reflect the principles andprovisions of the Convention.7. The Committee recommends that the State party review transitionallegislation, customary and local laws and adopt all necessary measuresto ensure their compatibility with the principles and provisionsof the Convention. The Committee also recommends that the Stateparty ensure that legislation is effectively implemented.Coordination and national plans of action8. The Committee welcomes the adoption of the National Programme ofAction on Children for the periods 1996-2000 and 2002-2006 and theestablishment of the National Committee on the Rights of the Child tocoordinate activities for the implementation of the Convention.However, the Committee is concerned that this mechanism does nothave sufficient resources to carry out its mandate.9. The Committee recommends that the State party strengthen theNational Committee on the Rights of the Child, in particular itscapacity to coordinate activities at both the national and local level.Sufficient financial and human resources should be allocated to thecoordination mechanism and to the National Programme of Action onChildren and, if necessary, the State party should seek internationalassistance in this regard.Independent monitoring10. The Committee is concerned at the absence of an independent mechanismwith a mandate regularly to monitor and evaluate progress in theimplementation of the Convention and which is empowered to receiveand address individual complaints.11. Taking into account its general comment No. 2 on national222

Eritreahuman rights institutions, the Committee encourages the State party topursue efforts to establish an independent and effective mechanism inaccordance with the Paris Principles and that is provided withadequate human and financial resources and easily accessible tochildren, to monitor the implementation of the Convention, deal withcomplaints from children in a child-sensitive and expeditious mannerand provide remedies for violations of their rights under theConvention.Resources for children12. While noting the increased investment in social services infrastructurefollowing the peace agreement, the Committee is concerned thatbudgetary allocations and international development assistance areinsufficient to respond to national and local priorities for the promotionand protection of children’s rights.13. The Committee recommends that the State party pay particular attentionto the full implementation of article 4 of the Convention byprioritizing budgetary allocations to the implementation of the economic,social and cultural rights of children, in particular thosebelonging to economically disadvantaged groups, “to the maximumextent of … available resources and, where needed, within the frameworkof international cooperation”. Furthermore, the Committee callson both the State party and international donors to reopen theirdialogue, in particular with regard to programmes for the implementationof children’s rights.Data collection14. The Committee regrets the lack of comprehensive and up-to-datestatistical data in the State party’s report.15. The Committee recommends that the State party develop a system ofdata collection that covers all areas of the Convention and ensure thatall data and indicators are used for the formulation, monitoring andevaluation of policies, programmes and projects for the effectiveimplementation of the Convention. The State party should considerseeking technical assistance from UNICEF, among others.223

Violence Against Women: 10 Reports / Year 2003Cooperation with civil society16. The Committee notes with appreciation the national commitment tochildren’s rights and the cooperation existing between theGovernment and national civil society organizations in this regard. Atthe same time, it notes with concern that the State party has strictlylimited its cooperation with international civil society since 1997.17. The Committee emphasizes the important role civil society plays as apartner in implementing the provisions of the Convention, and recommendsthat the State party promote closer cooperation with NGOs andconsider involving more systematically international NGOs, especiallyrights-based ones, and other sectors of civil society working withand for children throughout all stages of the implementation of theConvention.2. Definition of the child18. The Committee notes with appreciation that both the TransitionalCivil Code of Eritrea and the draft Civil Code define children as allpersons under the age of 18, and that the Constitution states that menand women of full legal age shall have the right, upon their consent,to marry and found a family freely. Nevertheless, the Committee isconcerned that customary law does not have the same minimum ageof marriage, and in practice many children are married between theages of 13 and 15.19. The Committee recommends that the State party develop sensitizationprogrammes involving community, traditional and religious leadersas well as society at large, including children themselves, to enforcelegislation and curb the practice of early marriage.3. General principlesDiscrimination20. The Committee is concerned that, as noted by the State party,societal discrimination persists against vulnerable groups of children,including girls, children with disabilities, AIDS orphans and childrenborn out of wedlock.224

Eritrea21. The Committee recommends that the State party increase its efforts toensure implementation of existing laws guaranteeing the principle ofnon-discrimination and full compliance with article 2 of theConvention, and adopt a proactive and comprehensive strategy toeliminate discrimination on any grounds and against all vulnerablegroups.22. The Committee requests that specific information be included in thenext periodic report on the measures and programmes relevant to theConvention on the Rights of the Child undertaken by the State partyto follow up on the Declaration and Programme of Action adopted atthe 2001 World Conference against Racism, Racial Discrimination,Xenophobia and Related Intolerance and taking account of generalcomment No. 1 on article 29 (1) of the Convention (aims of education).Best interest of the child23. The Committee is concerned that in all actions concerning children,the general principle of the best interests of the child contained in article3 of the Convention is not always a primary consideration, in particularin customary law.24. The Committee recommends that the State party review its legislationand administrative measures to ensure that article 3 of the Conventionis duly reflected therein and that this principle is taken into accountwhen administrative, policy, judicial or other decisions are made. Itfurther recommends that the State party collaborate with local authorities,NGOs and community leaders to develop awareness-raisingcampaigns regarding the general principle of acting in the best interestof the child.Respect for the views of the child25. The Committee notes with concern that the Transitional Civil Codeguarantees the right to be heard only to children who have attainedthe age of 15 and that traditional practices and attitudes still limit thefull implementation of article 12 of the Convention, in particular forgirls.225

Violence Against Women: 10 Reports / Year 200326. The Committee recommends that the State party amend its legislationto fully reflect article 12 of the Convention so that any child “who iscapable of forming his or her own views” can express those viewsfreely, including in all administrative and judicial proceedings affectingthem. It also recommends that the State party develop a nationwidecampaign to increase public awareness of the participatoryrights of children, particularly at the local levels and in traditionalcommunities, and encourage respect for the views of the child in families,schools, and the care, administrative and judicial systems.4. Civil rights and freedomsBirth registration27. The Committee is concerned that although parents are required bylaw to register the birth of their children, a significant number of childrenare not registered at birth.28. In the light of article 7 of the Convention, the Committee urges theState party to increase its efforts to ensure that all children are registeredat birth inter alia by eliminating administrative costs for parents,conducting awareness-raising campaigns and establishing mobile registrationunits in rural areas. The Committee also recommends thatthe State party undertake similar measures to register all children whowere not registered at birth. In this regard, the State party should considerseeking technical assistance from UNICEF, the United NationsPopulation Fund (UNFPA) and other potential donors.Freedom of expression and religion29. The Committee, noting that the State party’s Constitution guaranteesthe right to freedom of expression and religion, is concerned atreports that measures affecting children and young people were takenagainst students and religious groups, indicating that these rights werenot fully upheld.30. The Committee recommends that the State party take all necessarymeasures to ensure that these rights are fully respected for all226

Eritreachildren, as stipulated in the Convention, and that violations of thefreedoms of expression and religion are prevented.Violence, including ill-treatment31. The Committee is concerned at the lack of data on ill-treatment ofchildren, including child abuse and corporal punishment. It also noteswith concern that corporal punishment is not expressly prohibited bylaw and is widely practised in the home and in institutions.32. The Committee recommends that the State party:(a) Establish a mechanism to collect data on the victims and perpetratorsof abuse, disaggregated by gender and age, in order to assessproperly the extent of the problem and to design policies and programmesto address it;(b) Carry out public education campaigns about the negative consequencesof ill-treatment of children and, in collaboration withcommunity leaders and others, promote positive, non-violentforms of discipline as an alternative to corporal punishment;(c) Expressly prohibit by law corporal punishment in the home,schools and other institutions;(d) Establish effective procedures and mechanisms to receive, monitorand investigate complaints of abuse, including interveningwhere necessary, and ensure that victims have access to assistancefor their recovery.(e) Seek technical assistance from, among others, UNICEF in thisregard.5. Family environment and alternative careParental responsibilities33. The Committee notes with appreciation that the Constitution accordsboth parents equal rights and duties within the family, yet it is con-227

Violence Against Women: 10 Reports / Year 2003cerned that the Transitional Civil Code and customary laws do notgenerally recognize the principle enshrined in article 18 of theConvention “that both parents have common responsibilities for theupbringing and development of the child”, particularly with regard tothe custody of children in divorce.34. The Committee recommends that the State party ensure that whenjudicial proceedings or family councils decide to grant one parentcustody of the child, the decision is taken on the basis of the bestinterest and with the participation of the child. The State party shouldalso ensure that both parents are adequately informed of their rightsand responsibilities, particularly in the case of divorce.Alternative care and adoption35. The Committee welcomes the State party’s efforts to place orphanswith their extended families while providing these families inparticular female-headed households, with financial assistance.The Committee also welcomes the information provided during thedialogue that the criteria for potential adoptive families are not asnarrow as presented in the State party report (para. 169). TheCommittee welcomes the State party’s efforts to phase out large-scaleorphanages and other institutions and to place children in grouphomes only as a last resort, but remains concerned that existing servicesare insufficient to provide for the large number of orphans,including AIDS orphans, and unaccompanied refugee or displacedchildren.36. The Committee recommends that the State party continue to strengthenand expand its efforts to place children in need of alternative carewith their extended families and to promote adoption of these childrenwhen appropriate. The Committee also recommends that theState party continue and expand as necessary its programme for theestablishment of children’s group homes, and seek international assistancein this regard.Child abuse37. The Committee notes with concern that there is no information228

Eritreaavailable on the various forms of child abuse in the family and thatlegislation does not provide for effective protection of children fromsexual and physical abuse.38. The Committee recommends that the State party:(a) Reform its legislation on abuse in the family to expressly prohibitsexual and physical abuse;(b) Undertake studies on domestic violence, ill-treatment and abuse(including sexual abuse within the family) in order to adopt effectivepolicies and programmes to combat all forms of abuse;(c) Develop an effective national system for receiving, monitoringand investigating complaints and, when necessary, prosecutingcases, in a manner which is child-sensitive and ensures the victim’sprivacy;(d) Set up a comprehensive nationwide response system to provide,as appropriate, support and assistance to both victims and perpetratorsof family violence, rather than only intervention or punishment,and which ensures that all victims of violence have accessto counselling and assistance for their recovery and reintegration,while preventing stigmatization of victims of abuse;(e) Seek technical assistance from, among others, UNICEF and theUnited Nations Development Programme (UNDP), in this regard.6. Basic health and welfare39. The Committee notes with appreciation the State party’s programmeto extend health services which has increased access from 10 to 70per cent of the population since independence in 1991, as well as itsprogramme of cooperation with UNICEF in the area of health andhealth services. However, the Committee is concerned at the high rateof child and infant mortality due to acute respiratory infections, diarrhoealdiseases, malaria and malnutrition. It is further concerned thata considerable number of families lack access to safe drinking waterand sanitation facilities, which contributes to the spread of communicablediseases.229

Violence Against Women: 10 Reports / Year 200340. The Committee recommends that the State party:(a) Continue to expand access to health services, in particular in ruralareas, and increase the skills of health personnel with a view toreducing infant mortality rates;(b) Continue to strengthen the implementation of existing health policiesand programmes, in particular the National Policy onBreastfeeding and Weaning Practices (1995) and the EritreanRural Water Supply and Environmental Sanitation Programme;(c) Expedite the adoption of the draft Marketing of Infant and YoungChild Foods Act.Adolescent health41. The Committee is concerned at the lack of available data regardingthe prevalence of substance abuse, tobacco use and suicide. It is alsoconcerned about the growing problem of sexually transmitted infections(STIs) among adolescents.42. The Committee recommends that the State party take all necessarymeasures to assess the prevalence of substance abuse, tobacco use andsuicide and take effective measures to prevent and treat health problemsaffecting adolescents, including the spread of STIs, through,inter alia, sex education, counselling and availability of condoms.HIV/AIDS43. The Committee is concerned about the rapid spread of HIV/AIDSwithin the State party.44. The Committee recommends that the State party actively pursue itsongoing activities in collaboration with UNICEF to counterHIV/AIDS and integrate respect for the rights of the child into thedevelopment and implementation of its HIV/AIDS policies and strategieson behalf of children infected with and affected by HIV/AIDS, aswell as their families, including by making use of the InternationalGuidelines on HIV/AIDS and Human Rights (E/CN.4/1997/37,annex) and the Committee’s general comment No. 3 on HIV/AIDSand the rights of the child.230

EritreaHarmful traditional practices45. While the Committee notes with appreciation the adoption of a strategyto eliminate female genital mutilation, it is very concerned at thewidespread practice of FGM, which affects almost 90 per cent of girlsin the State party. It is also concerned about other harmful traditionalpractices, including early marriage, which contributes to the high rateof maternal mortality.46. The Committee recommends that the State party continue to strengthenthe implementation of its Strategy to Eliminate Female GenitalMutilation (1999) and undertake legislative reform to expressly prohibitthe practice. It also recommends that the State party undertakesimilar educational and awareness programmes, in cooperation withNGOs and community leaders, with regard to other harmful traditionalpractices such as early marriage.Children with disabilities47. The Committee welcomes the information provided by the State partyduring the dialogue that it has drafted a National Child and FamilyWelfare Policy, which includes measures to integrate children withdisabilities into the education system. Yet, it remains concerned thatchildren with disabilities often suffer from societal discrimination andthat a significant proportion do not attend school or participate insocial and cultural life.48. The Committee recommends that the State party:(a) Adopt and implement the draft National Policy on Persons withDisability, which should include measures to educate the publicabout ways to prevent disability, and ensure that children’s rightsare adequately integrated into the policy;(b) Adopt and implement the draft National Child and FamilyWelfare Policy;(c) Continue to strengthen efforts to combat discriminatory attitudestowards children with disabilities, particularly amongst childrenand parents, and promote their participation in all aspects ofsocial and cultural life;231

Violence Against Women: 10 Reports / Year 2003(d) Formulate a programme that includes appropriate teacher trainingin order to ensure that all children with disabilities have access toeducation, including vocational training, and that wherever possiblethey are integrated into the mainstream education system.Standard of living49. The Committee is concerned at the inadequate standard of livingwhich hampers the respect for and fulfilment of the rights of childrenand the ability of their families to provide them with adequate protection.50. The Committee recommends that the State party formulate a nationalstrategy to combat poverty, with due emphasis on monitoring theimpact on the rights of children, and that it allocate sufficient humanand financial resources, including through international assistance, toensure the implementation of its strategy.7. Education, leisure and cultural activities51. The Committee is encouraged by the State party’s efforts to increaseenrolment rates in basic education, reduce illiteracy, promote culturaland recreational activities and provide education in the native languageof all nine ethnic groups. However, it is concerned that enrolmentand literacy levels are still low, particularly in secondary andpre-primary education, and that there is a significant disparitybetween the number of boys and girls in school. It also notes withconcern that there are few trained teachers and limited opportunitiesfor teachers to upgrade their skills.52. The Committee recommends that the State party:(a) Continue to strengthen measures aimed at increasing enrolmentrates in primary and basic education, in particular for girls;(b) Undertake additional efforts to increase the budget for education;(c) Continue its activities in the area of cultural and recreationalactivities;232

Eritrea(d) Expand public provision of early childhood education, in particularin rural areas, and increase the number of trained pre-schoolteachers, and raise awareness amongst parents about the value ofearly childhood education;(e) Prioritize and continue to strengthen and expand efforts at teachertraining and expand recruitment of qualified teachers, in particularwomen and persons from all ethnic groups for education in mother-tongueprogrammes;(f) Include human rights education as part of the curriculum.8. Special protection measuresChildren affected by armed conflict, including refugee and displacedchildren53. While noting with appreciation the State party’s extensive experiencein providing care and protection to vulnerable children separated fromtheir families through national and field-level structures, as well as theEritrean Refugees and Relief Commission, the Committee is concernedthat there are still a significant number of children sufferingfrom the effects of armed conflict, in particular returnees, internallydisplaced children, landmine victims and children who were separatedfrom their parents following expulsions of Eritreans from Ethiopiaduring the border war (1998-2001).54. The Committee recommends that the State party continue to strengthenprogrammes to provide assistance and support to children affectedby armed conflict, including returnee and displaced children and landminevictims, while paying particular attention to female-headedhouseholds. In particular, the Committee recommends that the Stateparty:(a) Ratify the 1951 Convention relating to the Status of Refugees andits 1967 Protocol and enact refugee legislation that adheres tointernational standards, in particular in the area of rights andobligations of asylum-seekers;233

Violence Against Women: 10 Reports / Year 2003(b) Strengthen efforts to trace and reunite family members of refugeeand displaced children, including those expelled from Ethiopiaduring the border war;(c) Develop administrative structures and procedures for processingasylum-seekers, including children;(d) Seek international support and technical assistance, where possible,from United Nations agencies, in particular UNHCR, andNGOs to expedite the process of demining and the social reintegrationand, when necessary, rehabilitation of all victims of recentarmed conflicts.Economic exploitation55. The Committee welcomes the State party’s ratification of ILOConvention No. 138 in 2000. Nevertheless, it remains concerned atthe significant number of children working on the street, in the agriculturalsector and as domestic servants.56. The Committee recommends that the State party:(a) Undertake a survey of the number of children working as domesticservants and in the agricultural sector in order to design andimplement policies to prevent and combat economic exploitationof children in these sectors;(b) Continue to strengthen the implementation of the Street ChildrenRehabilitation Programme;(c) Ratify the ILO Worst Forms of Child Labour Convention, 1999(No. 182).Sexual exploitation57. Although the State party recognizes that prostitution, including childprostitution, is not a serious problem, the Committee notes with concernthe lack of specific data on the commercial sexual exploitation ofchildren.234

Eritrea58. The Committee recommends that the State party:(a) Expedite the adoption and implementation of the Eritrean ChildLaw and the National Plan of Action to Rehabilitate CommercialSex Workers;(b) Undertake a study of children involved in the commercial sexindustry and use the data to design policies and programmes toprevent commercial sexual exploitation of children, includingthrough the development of a National Plan of Action onCommercial Sexual Exploitation of Children as agreed at the firstand second World Congresses against Commercial SexualExploitation of Children held in 1996 and 2001;(c) Train law enforcement officials, social workers and prosecutorson how to receive, monitor, investigate and prosecute complaintsin a child-sensitive manner that respects the privacy of the victim;(d) Prioritize recovery assistance and ensure that education and trainingas well as psychosocial assistance and counselling are providedto victims;(e) Cooperate with countries in the region to combat commercial sexualexploitation and trafficking of children.Juvenile justice59. The Committee is concerned that the minimum age of criminalresponsibility of 9 years is too low; children between the ages of 15and 18 in conflict with the law are tried as adults; juvenile offenderswho have been deprived of their liberty are not separated from adultsand there are no programmes for their rehabilitation and integration.60. The Committee recommends that the State party:(a) Ensure that juvenile justice standards are fully adhered to, in particulararticles 37, 39 and 40 of the Convention, the UnitedNations Standard Minimum Rules for the Administration ofJuvenile Justice (the Beijing Rules) and the United NationsGuidelines for the Prevention of Juvenile Delinquency (the RiyadhGuidelines), and in the light of the Committee’s 1995 day of gen-235

Violence Against Women: 10 Reports / Year 2003eral discussion on the administration of juvenile justice(CRC/C/46, chap. III, sect. C);(b) Ensure, as a matter of urgency, that juveniles in detention are keptseparately from adults;(c) Set a clear minimum age of criminal responsibility which is at aninternationally acceptable level;(d) Ensure that all children from that minimum age till the age of 18are accorded the special protection guaranteed under theConvention;(e) Establish juvenile courts;(f) Seek technical assistance from, among others, UNICEF andOHCHR in reforming the juvenile justice system, in particularwith regard to juvenile detention and rehabilitation services.9. Optional Protocols61. The Committee notes that the State party has not ratified the OptionalProtocols to the Convention on the Rights of the Child on the sale ofchildren, child prostitution and child pornography, and on the involvementof children in armed conflict.62. The Committee recommends that the State party ratify the OptionalProtocol to the Convention on the Rights of the Child on the sale ofchildren, child prostitution and child pornography, and on the involvementof children in armed conflict.10. Dissemination of documents63. Finally, in light of article 44, paragraph 6, of the Convention, theCommittee recommends that the initial report and written replies submittedby the State party be made widely available to the public atlarge and that the publication of the report be considered, along withthe relevant summary records and concluding observations adoptedby the Committee. Such a document should be widely distributed in236

Eritreaorder to generate debate and awareness of the Convention and its implementationand monitoring within the Government, the Parliament and thegeneral public, including concerned NGOs.11. Next report64. In light of the recommendation on reporting periodicity adopted bythe Committee at its twenty-ninth session (see CRC/C/114), theCommittee underlines the importance of a reporting practice that is infull compliance with the provisions of article 44 of the Convention.An important aspect of States parties’ responsibilities to childrenunder the Convention is ensuring that the Committee on the Rights ofthe Child has regular opportunities to examine the progress made inthe Convention’s implementation. In this regard, regular and timelyreporting by States parties is crucial. As an exceptional measure, inorder to help the State party catch up with its reporting obligations soas to be in full compliance with the Convention, the Committeeinvites the State party to submit its second and third reports in oneconsolidated report by 1 September 2006, the due date for the submissionof the third report. This consolidated report should not exceed120 pages (see CRC/C/118). The Committee expects the State partyto report thereafter every five years, as foreseen by the Convention.237

Violence against Women in EstoniaA Report to the Human Rights CommitteeContents1. Preliminary Observations .............................................................................................................................. 2411.1 Estonia’s International Obligations .............................................................................. 2421.2 Status of International Law in Estonia ..................................................................... 2431.3 Human rights situation in Estonia .................................................................................... 2442. De jure and de facto status of women ......................................................................................... 2452.1 Gender equality in legislation ................................................................................................ 2452.2 Women and education ......................................................................................................................... 2472.3 Women’s employment and earning ..................................................................................... 2482.4 Representation of women in politics ............................................................................. 2502.5 Access to citizenship ............................................................................................................................. 2513. Violence against Women in the Family ...................................................................................... 2534. Violence against Women in the Community ........................................................................ 2534.1 Rape ................................................................................................................................................................................ 2544.2 Violence at work ......................................................................................................................................... 2544.3 Trafficking in women ........................................................................................................................... 2555. Violence against Women at the hands of state agents ....................................... 2565.1 Detention ............................................................................................................................................................ 2576. Conclusions and Recommendations ............................................................................................... 33Concluding observations of the Human Rights Committee: EstoniaSeventy-seventh session – 17 March - 4 April 2003Consideration of Reports Submitted by States PartiesUnder Article 40 of the Covenant ............................................................................................................. 262A. Introduction ............................................................................................................................................................ 262B. Positive aspects ..................................................................................................................................................... 262C. Principal subjects of concern and recommendations .................................. 263239

Estonia1. Preliminary ObservationsThe submission of information specifically relating to violence againstwomen to the United Nations Human Rights Committee forms part ofOMCT’s Violence Against Women Programme which focuses on integratinga gender perspective into the work of the five “mainstream” UnitedNations human rights treaty monitoring bodies. OMCT’s gender analysesand reporting entail examination of the effects of gender on the formwhich the human rights violation takes, the circumstances in which theabuse occurs, the consequences of those abuses, and the availability andaccessibility of remedies.OMCT notes with concern that Estonia’s Government reportCCPR/C/EST/2002/2 (hereafter referred to as the government report),only addresses some women’s issues when it discusses the implementationof article 3 of the International Covenant on Civil and Political Rights(ICCPR), but does not discuss human rights of women when discussingthe other articles. Moreover, OMCT regrets that the government reportonly deals marginally with the issue of violence against women inEstonia.OMCT would like to recall that article 3 of the ICCPR stresses the need toensure the equal right of men and women to the enjoyment of “all civiland political rights set forth in the present covenant.” [emphasis added]Moreover, with regard to violence against women, OMCT would like toevoke that in paragraph 11 of General Comment 28 adopted by theHuman Rights Committee in March 2000, which examines the equality ofrights between men and women and updates its earlier General Commenton that topic adopted in 1981, 1 the Committee addresses the fact thatmuch of the violence suffered by women is violence that occurs at thehands of private individuals and recognises that this violence can amountto torture which is prohibited by article 7 in the Covenant. The paragraphreads:“To assess compliance with article 7 of the Covenant, aswell as with article 24, which mandates special protectionfor children, the Committee needs to be provided informationon national laws and practices with regard to domesticand other forms of violence against women, including rape.241

Violence Against Women: 10 Reports / Year 2003It also needs to know whether the State party gives access tosafe abortion to women who have become pregnant as aresult of rape. The States Parties should also provide theCommittee information on measures to prevent forced abortionor forced sterilisation. In States Parties where the practiceof genital mutilation exists, information on its extentand on measures to eliminate it should be provided. Theinformation provided by States parties on all these issuesshould include measures of protection, including legal remedies,for women whose rights under article 7 have been violated.”1.1 Estonia’s International ObligationsEstonia became a member state of the United Nations on 17 September1991. Estonia acceded to the ICCPR on 21 January 1991. Estonia’s governmentreport is submitted in accordance with article 40, paragraph 1 ofthe ICCPR and is Estonia’s second periodic report on the measures takenby the government to implement the rights proclaimed in the ICCPR andon the progress made in the exercise of those rights.Estonia acceded to the First Optional Protocol to the Covenant on 21October 1991. It is not a State party to the Second Optional Protocol toICCPR aiming at the abolition of the death penalty.Estonia is also a State party to other international and regional humanrights instruments prohibiting violence, including torture, and other cruel,inhuman or degrading treatment, directed against women. Estonia accededto the Convention against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment (hereafter the Convention againstTorture) on 20 November 1991.Estonia has acceded, without reservations, to the Convention on theElimination of All Forms of Discrimination against Women on 20November 1991. The Committee on the Elimination of DiscriminationAgainst Women (CEDAW) considered Estonia’s combined initial, secondand third periodic report on the implementation of the Convention duringits 26 th session in January 2002. OMCT regrets the fact that Estonia didnot ratify the Optional Protocol to the Convention.242

EstoniaIn 1992, the CEDAW adopted General Recommendation 19, which statesthat “gender-based violence, which impairs or nullifies the enjoyment bywomen of human rights and fundamental freedoms under general internationallaw or under human rights conventions, is discrimination within themeaning of article 1 of the Convention.” It defines gender-based violenceas “violence that is directed against a woman because she is a woman orthat affects women disproportionately. It includes acts that inflict physical,mental or sexual harm or suffering, threats of such acts, coercion andother deprivations of liberty.”Moreover, Estonia is a State Party to the International Covenant onEconomic, Social and Cultural Rights, the Convention on the Rights ofthe Child and the Convention on the Elimination of RacialDiscrimination.At the regional level, Estonia is a participating state in the Organisation ofSecurity and Cooperation in Europe. Moreover, it became a member ofthe Council of Europe on 14 May 1993 and ratified the EuropeanConvention for the Protection of Human Rights and FundamentalFreedoms on 16 April 1996. On 6 November 1996, Estonia ratified theEuropean Convention for the Prevention of Torture and Inhuman orDegrading Treatment or Punishment.1.2 Status of International Law in EstoniaAccording to article 3 of the Estonian Constitution 2 , universally recognizedprinciples and norms of international law are an inseparable part ofthe Estonian legal system. If laws or other legislation of Estonia are inconflict with international treaties ratified by the Riigikogu, the Estonianparliament (including international human rights conventions), the provisionsof the international treaty will apply (Article 123 of theConstitution). 3In accordance with the Foreign Relations Act, the Government of theRepublic is responsible for the fulfilment of international treaties. If anEstonian legal act contradicts an international treaty, the Governmenteither submits a bill to the Riigikogu to amend the act, or the Governmentamends other legal acts within its competence to comply with the treaty.243

Violence Against Women: 10 Reports / Year 2003This is the theory but, as the CEDAW noted with regard to the implementationof the Convention on the Elimination of All Forms ofDiscrimination Against Women, “although in accordance with articles 3and 123 of the Constitution, the Convention is integrated into domesticlegislation and takes precedence over such legislation the Committee isconcerned that there is still a lack of familiarity among the judiciary, lawenforcement agents and women themselves about the opportunities for theapplication of the Convention in domestic decision-making.” 41.3 Human rights situation in EstoniaChapter 2 of the Estonian Constitution contains a catalogue of fundamentalrights and freedoms applicable in the Republic of Estonia. The chaptercomprises 48 articles setting out the framework for the protection of civil,political, economic, social and cultural rights.All courts in Estonia are competent to deal with questions of humanrights. The Constitution states that in a court proceeding, the court willleave unapplied any law or other legislation that is in conflict with theConstitution. The Supreme Court will declare invalid any law or otherlegislation that is in conflict with the provisions and spirit of theConstitution (article 152 of the Constitution).Police violence and prison conditions are a problem in Estonia accordingto the International Helsinki Federation for Human Rights, a group ofnon-governmental organisations that act to protect human rights throughoutEurope, North America and the Central Asian republics. 5 Reportedlyill-treatment of prisoners takes place in both prison and pre-trial detentionfacilities.The lack of independence of the judiciary in Estonia is another importantproblem. The independence of the judiciary is guaranteed by law but inreality there are many deficiencies. This is mainly due to financialarrangements that restrict notably the lower-level courts and a huge backlogof cases that interferes with the proper functioning of the court system.244

Estonia2. De jure and de facto status of women2.1 Gender equality in legislationThe Constitution of Estonia sets out that the rights, freedoms and duties ofeach and every person will be equal for Estonian citizens and for citizensof foreign States and stateless persons in Estonia (art. 9). 6 According tothe Constitution, everyone is equal before the law. No one will be discriminatedagainst on the basis of nationality, race, colour, sex, language,origin, religion, political or other opinion, property or social status, or onother grounds. The incitement of national, racial, religious or politicalhatred, violence or discrimination is prohibited and punishable by law(art. 12). 7 Everyone has the right of appeal to a higher court againstthe judgement in his or her case pursuant to procedure provided by law(art. 24). 8Although the most serious offences in the field of gender discriminationare punishable according to the Criminal Code, Estonian courts dealaddress with such cases. Additionally, courts and prosecutor offices oftendeny qualifying certain offences as having been motivated by discrimination.9The CEDAW expressed its concern that, although the Constitution anddomestic laws provide for the equality of all citizens, they do not containa specific definition of discrimination against women based on article 1 ofthe Convention on the Elimination of Discrimination Against Women,which prohibits both direct and indirect discrimination. 10On 14 December 2001 the Estonian Government initiated the Draft Lawon Gender Equality (Draft # 927 SE). Another relevant act, the Draft Lawon Equality and Equal Treatment, was submitted by the Government ofthe Republic on 21 October 2002 (Draft # 1198 SE). It deals with discriminationon the basis of sex, race, ethnic origin, age, disability, sexualorientation, social or legal status, religious or other belief and providesfor mechanisms that could be used in cases of the so-called multiplediscrimination. The draft includes comprehensive notions of direct andindirect discrimination and harassment on the abovementioned grounds.The second reading of both drafts is currently suspended because of discussionsin parliament to merge to the two acts.245

Violence Against Women: 10 Reports / Year 2003According to paragraph 10 of the Employment Contracts Act, it is illegalto allow or give preferences, or to restrict rights on the grounds of the sex,nationality, colour, race, native language, social origin, social status, previousactivities, religion, or political or other opinion. According to article5 of the Wages Act, it is prohibited to increase or reduce wages on thegrounds of sex, nationality, colour, race, native language, social origin,social status, previous activities, religion, political or other opinions orconscientious objection. It is prohibited to reduce wages on the groundsof marital status, family obligations, membership in citizens’ associationsor representation of the interests of employees or employers.In addition, on 31 May 2000 Estonia ratified the Revised Social Charter,including article 4 that contains the recognition of the right to equal payfor work of equal value. All disputes arising from this law are consideredby the Commission on Labour Disputes or by the courts. Neither in 2001nor in 2002 did the Commission on Labour Disputes consider genderrelatedapplications.Since 1999, the Legal Chancellor of Estonia has been vested with thepowers of ombudsman (under Ch. IV of Law on Legal Chancellor 11 ).Everyone is entitled to refer to him or her for surveillance over performanceof the state institutions, including the provision for constitutionalrights and freedoms (Art. 19 of the Law). Also, the Legal Chancellor isempowered to receive and examine residences’ complaints. Although theLegal Chancellor Office is theoretically independent, its head is a governmentofficial.Between 1999-2000 the Legal Chancellor received only one gender-relatedcomplaint. It concerned the right of homosexual men to found afamily 12 . The relatively few complaints relating to gender-related discriminationis explained by the Legal Information Centre for Human Rights inpart by non-efficient dealing with discrimination-related problems and theabsence of a specific mandate on these issues. Moreover, informationregarding the activities of the Chancellor’s Office is not easily accessibleto the public, and official communications do not mention discriminationand human rights violations 13 .246

Estonia2.2 Women and educationAccording to article 37 of the Estonian Constitution, everyone has theright to education.Estonia is well covered with a network of schools, but education is notalways accessible to all children. According to State data, the overallnumber of children in general education schools in 1999 was 215 841.The dropout rate from the basic and upper secondary schools is extremelyhigh in Estonia, which shows that education is not made accessible in away that creates a possibility for everybody to receive a graduation certificate.The percentage of dropouts according to the type of school and gender(% of girls/ boys, who studied in these types of schools) 1993/94 – 1998/99.a/y Girls Boys Girls Boys TOTAL1993/94 0,4 1,0 389 901 12901994/95 0,5 1,1 407 989 13961995/96 0,4 1,0 361 995 1356Basic school 1996/97 0,5 1,0 480 991 14711997/98 0,4 1,0 366 996 13621998/99 0,4 1,1 343 1051 13941993/94 5,4 8,4 1064 1146 22101994/95 5,5 8,5 1192 1271 24631995/96 5,4 7,9 1160 1180 23401996/97 5,4 8,8 1186 1367 2553Upper secondary school 1997/98 6,4 9,0 1462 1390 28521998/99 5,6 8,1 1248 1187 2435Source: Annus etc. Overview of the educational system of Estonia 2000.According to data of an Estonian labour survey in 1995, women outperformedmen with regard to the majority of educational indicators: 19% ofworking age women had higher education, 30% had specialised secondaryeducation, while among working age men 16% had higher education and21% specialised secondary education. In continuation of education after247

Violence Against Women: 10 Reports / Year 2003completing the basic school, there are remarkable differences betweenboys and girls: in secondary schools of general education there hasbeen predominance of girls for years, on the other hand, in vocationaleducational institutions, boys hold the majority.In 1997, the total proportion of participants in third level education amongwomen was 51% and among men 41%. Thus, considering the trends inrecent years it can be said that preconditions for universal post-secondaryeducation are developing in Estonia, although mainly among women.While noting with appreciation the high level of education amongwomen, the CEDAW Committee expressed its concern at the continuinggender disparities regarding educational options of boys and girls, as wellas the fact that this high level of education does not result in an eliminationof the wage differential between men and women, in particular thegap between female- and male-dominated sectors of employment. 142.3 Women’s employment and earningThe high level of education among the country’s women does not correspondwith equal chances in terms of employment and political office.The labour participation rate among women is still significantly lowerthan that of men (53% versus 63% in 2000), and traditional labour marketpatterns prevail, with about 70% of the women employed in the servicesector. The average salary of women is approximately one quarter lessthan that of men. 15 Estonia has ratified the Equal RemunerationConvention of the International Labour Organization calling for equal payfor men and women for work of equal value.The CEDAW noted with concern that the position of women in the labourmarket is characterized by discrimination and by a strong occupationalsegregation with a concomitant wage differential. The Committee alsovoiced its concern about the situation of young women who face additionaldifficulties in the labour market, owing to the domestic and familyresponsibilities assigned to them, placing them in a vulnerable positionand leading to a higher incidence in part-time work among women. 16“In 1997 the number of entrepreneurs was much higher among men(9,1%) than among women (about 3,0%) and this figure has not changed248

Estoniamuch during the past decade.” 17 Many studies have shown that womenhave less confidence in their ability to successfully conduct business thanmen. This is exacerbated by the lack of specific targeted programs for differentgroups of unemployed women addressing their training needs. Itappears that these conclusions are especially relevant with regard toRussian-speaking women. Only 13% of Russian-speaking women areowners of private firms as opposed to 22% of Estonian women that havetheir own business. 18Population by sex and economic status, 2000Female % Male %Total 736 201 53.9 631 851 46.1Labour force (active) 337 700 52.5 367500 68.4Inactive persons 305 800 169 600Employed 294 800 45.8 313 800 58.4Unemployed 42 800 12.7 53 600 14.6Source: Estonian Labour Force Survey, 2000 19Employment rates for men are considerable higher. In 2000 the employmentrates were 58.4% for men and 45.8% for women.According to the Legal Information Centre for Human Rights, the level ofunemployment among minority groups is higher than among Estonians.The majority of the population in North-Eastern Estonia (82%) isRussian-speaking. In this region, the unemployment rate is the highest at21,1%. 20 As many of the people among this population are not citizens ofEstonia, they are unable to participate in economic related decision makingprocess. 21 Between “1992-1994, the main losers on the labour marketwere non-Estonian women with advanced levels of education.” 22249

Violence Against Women: 10 Reports / Year 2003Unemployment rate by ethnic originSource: Statistical Office of Estonia 232.4 Representation of women in politicsIn the field of politics, women constituted 18% of the members of theParliament and 26% of the members of local councils. The newGovernment formed at the beginning of 2002 25 has a record number offive women within its ranks. Surveys accounted for in the Estonian reporton the implementation of the CEDAW indicated that, in particular, personswith higher education and well-paid jobs displayed a negative attitudetowards the participation of women in politics, and that anoverwhelming majority of both men and women remained unwilling tobecome involved in politics. 24While welcoming the information that the new Government will have 5women ministers out of 14 Cabinet posts, including in portfolios traditionallyreserved to men, the CEDAW Committee expressed its concern atthe low representation of women in decision-making bodies in the variousareas and levels of political and public life. 25According to the Estonian Constitution only Estonian citizens of 18 yearsor older have the right to vote. The Law on Riigikogu 26 Elections stipulates,that only Estonian citizen may run for candidate for the Riigikoguand have the right to vote. The law on Local Government CouncilElections stipulates that only permanent residents who have been for 5years in the territory of the particular local government have the right tovote.250

EstoniaAfter the 1999 elections there were 17 women in the Riigikogu: 16Estonians and 1 Russian out of 101 parliamentarians. As of 16 January2003, eleven political parties are participating in the parliamentary electionsin March 2003. Each party has women candidates, usually one ortwo candidates in the top 10. The Estonian Social-Democratic LabourParty has five women candidates and the Estonian Reform Party has threewomen candidates. 272.5 Access to citizenshipCertain categories of Estonian residents are denied the right to receivepermanent residence status. Included in this group are the wives of formermilitary officers who served in armed forces of foreign states. Thesewomen are denied this right because of the (former) status of their spouses28 . Although the above-mentioned law is equally valid for both men andwomen, women are the ones who suffer the consequences of this provisionin 99% of the cases. The CEDAW expressed its concern about thissituation. 293. Violence against Women in the FamilyDomestic violence is not prosecuted as a distinct criminal offence inEstonia. Violence occurring in the family is penalised under the sectionconcerning criminal offences against a person in the Penal Code.The position and role of Estonian women has evolved through differentperiods in history. Estonian ethnographers and historians have expressedopposing opinions about Estonian women. On one hand, an Estonianwoman is described as relatively independent and less dependent on thehusband than women in other nations, but on the other hand she isdescribed as depending on her husband. For centuries, strong traditionalpatterns of a patriarchal society have developed in Estonia. Femalecharacteristics and women’s activities were often underestimated andwomen’s work was not valued to the same extent as men’s work. Thepatriarchal structure has changed through time but many attitudes andstereotypes treating men’s central role have survived until today.251

Violence Against Women: 10 Reports / Year 2003Although the understanding of traditional values in Estonia has changedin recent decades, for example, the idea of a typical preferred familymodel has remained unchanged through centuries. Home and family asthe main guarantees of security and stability are valued highly by theEstonian people. For Estonians, as a small nation, the family is also somethingthat has served as a consolidating unit in preserving historical traditionsand developing their own culture.The results of the surveys on gender roles carried out by the Centre ofgender studies of the University of Tartu in 1995 and 1998 reflect themodern Estonian society as male-centrist society appreciating masculinequalities more than feminine qualities.According to statistical data every day in Estonia about 200 women sufferfrom physical violence and 33 from sexual violence. Two thirds of thesecases take place in the home. There are shelters for women who sufferfrom violence within the family in Tartu and Tallinn. The age of womenin the shelters varies between 17-70 years 30 .The CEDAW expressed its concern about violence against women andgirls, including domestic violence in Estonia. 31 Therefore, the Committeeurged the Government to place high priority on comprehensive measuresto address violence against women in the family and in society, and torecognize that such violence, including domestic violence, constitutes aviolation of the human rights of women under the Convention.In the light of its general recommendation 19 on violence against women,the CEDAW called upon the Government to ensure that such violenceconstitutes a crime punishable under criminal law, that it is prosecutedand punished with the required severity and speed, and that women victimsof violence have immediate means of redress and protection. It recommendedthat measures be taken to ensure that public officials,especially law enforcement officials, the judiciary, the medical professionsand social workers are fully sensitized to all forms of violenceagainst women. The CEDAW invited the Government to undertake awareness-raisingmeasures, including a campaign of zero tolerance, to makesuch violence socially and morally unacceptable. It also recommended theintroduction of a specific law prohibiting domestic violence againstwomen, which would provide for protection and exclusion orders andaccess to legal aid.252

EstoniaIn April 2000, the Ministry of Social Affairs in co-operation with theOpen Society Institute and International Criminal Prevention Institute(HEUNI) conducted a study on violence against women, interviewing 102women victims of violence. The study revealed that 62% of the intervieweesconsidered the incident as a severe case of violence. The study alsorevealed that only 24% of the victims informed the police of the incident.A criminal charge was filed against the offender in only two cases of allof the incidents. 324. Violence Against Women in the Community4.1 RapeThe new Penal Code defines rape as sexual intercourse with a personagainst his or her will, or taking advantage of a situation in which the personwas not capable of resisting or comprehending the act. 33 The definitionof rape extends to rapes within the family. Sexual intercourse withsomeone under the age of 14 is criminalised by the penal code. However,Estonian law permits the marriage of a girl between the ages of 15 and 18in exceptional circumstances such as pregnancy.Family violence and violence against women as an area of concern is notregularly measured and statistically covered in Estonia. The official statisticsdo not fully reflect the scope of the problem. For example, data onrapes are reported to and officially registered by the Police. However, thedata collected about rapes and attempted rapes are insufficient becauseonly a small number of cases are reported to the police and therefore donot give a representative overview about incidences of violence againstwomen.A survey conducted in 1995 indicated that only 6% of raped womeninformed the police about the crime. 34 Police departments in Estonia havebegun to create special interviewing rooms with modern equipment wherestatements are video taped so that a victim of crime does not have to providerepeated testimonies of his or her sufferings. So far such rooms havebeen created in Tartu and Võru and they are meant first of all for child victims,but they can also be used for female victims.253

Violence Against Women: 10 Reports / Year 2003In some police prefectures there are also specially trained female officerswho can recognise the behaviour of a sexually abused person and are ableto handle the person in an appropriate manner. At the beginning of 2001,a number of police officers were given a five-day training session on theessence of violence against women and on practical methods of handlingvictims and violent persons.4.2 Violence at workCases have been reported where pregnant women are forced by the managementof private companies to write a petition on acquisitive resignation.Frequently, private firms refuse to engage pregnant women or thewomen are forced to work illegally without a contract. As a result theemployers do not pay state taxes for these women and as a consequence,women have no state social protection. 35 As mentioned above, women aremostly occupied in the lesser prestigious and lesser paid professions.As noted above, all labour disputes are considered by the Commission onLabour Disputes or by the Courts. Neither in 2001 nor in 2002 did theCommission on Labour Disputes consider gender-related applications.4.3 Trafficking in womenThe new Penal Code that entered into force in September 2002, finallycriminalized trafficking in women.The General Assembly adopted the United Nations Convention againstTransnational Organized Crime in November 2000. The Convention iscurrently supplemented by two Protocols, one is trafficking in persons andone is on smuggling in persons. On 4 December 2002 Estonia ratified thisConvention. The Convention is not yet in force.Trafficking in human beings has become a serious global concern.International criminal groups, whose activities often include other formsof illicit trade such as smuggling of drugs and arms, often control traffickingin persons as well. In addition to abusing human rights, and violatinglabour and migration laws, trafficking in persons is also a problem ofnational and international security.254

EstoniaThe social-economic situation of women in Estonia is generally worsethan that of men as women are mostly in occupations that have lesserprestige and smaller wages. Therefore, women are more likely to becomethe victim of trafficking. Because of their even less favourable position,members of the Russian-speaking community in the northeast of Estoniaconstitute a large part of the number of victims.Estonia is a source country for women and girls trafficked for the purposeof sexual exploitation. Victims are trafficked abroad to the Nordic countriesand West Europe, including Germany, the Netherlands, Irelands, theUnited Kingdom, Italy and Iceland, Ireland and also to Japan and theUSA. A recent IOM report estimated that about 500 women and girlsfrom Estonia are transported abroad every year under false pretences andare forced to work as prostitutes, domestic workers or servants.The CEDAW noted with concern that there is still not enough informationon the subject of trafficking nor a comprehensive policy to address theproblem. 365. Violence against women at the hands of state agentsAs stated before, Estonia acceded to the UN Convention against Tortureand Other Inhuman or Degrading Treatment or Punishment on 21 October1991 and the Convention entered into force with respect to Estonia on 20November 1991.Article 18 of the Estonian Constitution states that no one shall be subjectedto torture or to cruel or degrading treatment or punishment and that noone shall be subjected to medical or scientific experiments against his orher free will.Until 2002, the Criminal Code of Estonia did not consider torture as acrime. State references to the articles containing any punishment forcommitting violent actions by officials are justified. On September 1,2002 a new Penal Code came into force, which had been adopted bythe Parliament on June 6, 2001 (RT I 2001, 61, 364). It containsthe chapter Violent Actions which defines in paragraph 122 torture asfollows: Continuous physical abuse or abuse which causes great pain255

Violence Against Women: 10 Reports / Year 2003is punishable by a pecuniary punishment or up to 5 years’ imprisonment.37By not including psychological suffering within its scope, the definitionof torture used in the Estonian legislation is narrower than the generallyaccepted definition, as provided for in the Convention against Torture inArticle 1. After consideration of the initial report of Estonia in 1995, theUN Human Rights Committee noted that the definition of torture in article114 of the Criminal Code was limited to physical force and does notencompass psychological torture and duress. In this respect the PenalCode of 2001 is no improvement. With regard to article 7 of theCovenant, the Committee strongly recommended that article 114 of theCriminal Code be reviewed so as to ensure its compliance with the broaderscope of torture under the Covenant, and called the attention of theauthorities to its General Comment No. 20 (44). 385.1 DetentionThe conditions of detention are cause for concern. According to theInternational Helsinki Federation for Human Rights prison conditionsremained poor despite considerable progress in this area. 39 Very often theconditions in which people are held during the arrest or imprisonmentcause serious damage to their mental and physical health and could beconsidered as torture or inhuman and degrading treatment. In their lettersto the Legal Information Centre for Human Rights prisoners often complainabout the rudeness and psychological pressure from the administration,groundless tightening of the regime, length of the legal proceedings,very difficult conditions of imprisonment. 40 The media has reported aboutnumerous hunger strikes in prisons.Estonia acceded in 1996 to the European Convention for the Prevention ofTorture and Inhuman or Degrading Treatment or Punishment and itsProtocols no. 1 and 2. The Convention entered into force with respect toEstonia on 1 March 1997. The provisions of the Convention are directlyapplicable in domestic courts. Case law of the application of theConvention is also part of domestic law.Under Article 7 of that convention European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or256

EstoniaPunishment (CPT) has carried out two visits to Estonia from 13 to 23 July1997 and from 15 to 21 December 1999. In October 2002 the reports ofthese visits were published, assessing the treatment of people detained inEstonia. 41During the 1997 visit, the CPT found that, in recent years, there had beena marked improvement in the manner in which detained persons weretreated by the police. However, extremely poor conditions of detentionprevailed in many police arrest houses. Detainees were held for prolongedperiods in unhygienic and overcrowded cells, with no mattresses and ameagre amount of food. During a follow-up visit carried out in 1999, theCPT noted the first positive steps taken by the Estonian authorities toimprove this situation.The conditions of detention of remand prisoners observed at TallinnCentral Prison in 1997 were intolerable. Deplorable material conditionswere compounded by a total absence of activities. In their responses, theEstonian authorities provide detailed information on the measures taken toimprove conditions of detention in the establishment and throughout theprison system.Many allegations of ill-treatment of patients were received at ValklaSocial Welfare House during the 1997 visit. Further, the establishmentwas not adequately resourced, particularly in terms of staff. During a follow-upvisit in 1999, the CPT noted that the situation had significantlyimproved. No allegations of ill-treatment were heard, and special traininghad been organised for staff.6. Conclusions and recommendationsOMCT urges the government of Estonia to include the definition of discriminationagainst women in its Constitution and national legislation andrecommends the speedy adoption of the draft laws on gender equality.OMCT recommends that the government of Estonia increases the strengthand visibility of the Gender Equality Bureau, a sub-unit of the Ministry ofSocial Affairs tasked with the responsibility of mainstreaming genderequality.257

Violence Against Women: 10 Reports / Year 2003OMCT recommends that the public is properly informed about the activitiesof the Legal Chancellor’s Office with regard to human rights violationsand discrimination.OMCT welcomes the high level of education among women in Estoniabut regrets that this does not result in an elimination of the wage differentialbetween men and women and better employment opportunities forwomen. OMCT therefore recommends that the government workstowards bridging this gap and pays specific attention to Russian-speakingwomen as they are a specifically vulnerable group.OMCT urges the government to stimulate the representation of women indecision-making bodies in the various areas and levels of political andpublic life.The generalised inequality between men and women in Estonia has createda situation in which women are particularly vulnerable to violence.Violence against women constitutes a serious obstacle to the achievementof women’s equality. In this light, OMCT expresses its concern about thefact that violence against women is not prosecuted as a distinct criminaloffence and recommends that Estonia adopt a specific law prohibitingdomestic violence against women, which would provide for protectionand exclusion orders and access to legal aid. OMCT would recommendthat effective measures be taken with respect to the enactment of legislationon domestic violence along the lines of the guidelines submitted bythe United Nations Special Rapporteur on violence against women to thefifty-second session of the United Nations Commission on Human Rights(U.N. doc. E/CN/.4/1996/53, Add.2). The government should adopt speciallegislation to meet the specific circumstances and needs created byfamily-based violence. OMCT recommends that the government establishprogrammes in order to improve the economic situation of women and theimplementation of public education programmes to eliminate traditionalstereotypes of the roles of men and women in society and to eradicatepractices that discriminate against women.OMCT welcomes the criminalisation of trafficking in the new Penal Codeand it would urge the Government to introduce programmes aimed atincreasing awareness and understanding of the seriousness of trafficking.These programmes should focus on the methods used by traffickers andthe hazardous consequences of being lured into trafficking.258

EstoniaThe current definition of torture in the Penal Code contains only physicalviolence not psychological violence. OMCT urges the government tobroaden the scope of the definition, in line with Article 1 of theConvention against Torture.Finally, OMCT would insist on the need to fully implement all provisionsof the Convention on the Elimination of Discrimination against Women,the Declaration on the Elimination of Violence against Women as well asthe Beijing Platform of Action, in Estonia as these are the most relevantinternational instruments concerned with all forms of violence againstwomen.1 The complete text is available on the website of the Office of the HighCommissioner for Human Rights: www.unhchr.ch and can be obtained under thesymbol: UN Doc. CCPR/C/21/Rev.1/Add.10.2 Article 3 Estonian Constitution, see for the English translationwww.oefre.unibe.ch.3 Ibid., Article 123.4 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.75 See Human Rights in the OSCE Region: The Balkans, the Caucasus, Europe,Central Asia and North America, Report 2002, available at www.ihf-hr.org.6 Article 9 Estonian Constitution, Ibid..7 Article 12, Ibid.8 Article 24, Ibid.9 Vadim Poleshchuk, Legal Analyses of Existing Domestic Legislation IdentifyingModifications Required to Conform to the Race Directive. Estonia; MinorityPolicy Group, Interights, Roma Rights Center, September 2001.10 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.7.11 Law on Legal Chancellor, RT I 1999, 29, 406.12 Poleshchuk, Ibid.13 “Minority protection in Estonia”, part IV “Institutions for the Protection ofMinorities”, section A “Official Bodies”. Report of the Legal Information Centrefor Human Rights.14 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.715 Research conducted in 2000 by the UNDP and the Estonian Ministry of SocialAffairs16 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.7259

Violence Against Women: 10 Reports / Year 200317 Rein Vöörmann, Men and women on the labor market: wage rations. Towards abalanced society. Women and men in Estonia, Ministry of Social Affairs ofEstonia, UNDP, Tallinn, 2000 (Information received from the Legal InformationCentre for Human Rights).18 Ivi Proos, Carrier for Estonian women money for Russians, newspaper “EestiPäevaleht”, 04 January 2001 (Information received from the Legal InformationCentre for Human Rights).19 Cf. the official web site of the National Statistical Office http://www.stat.vil.ee/1-market/tt2000/9.htm (Information received from the Legal Information Centre forHuman Rights).20 Hilda Vall, Unemployment rate by regions, article in daily news “Estonia” on27.02.2001 (Information received from the Legal Information Centre for HumanRights).21 Statement by Vadim Poleshchuk, LICHR in “Social Dimension of Integration inEstonia and Minority Education in Latvia”, ECMI Workshops “Social Dimensionof Integration in Estonia” 19-21 October 2001, Pärnu, Estonia (Informationreceived from the Legal Information Centre for Human Rights).22 Statement by Jelena Helemäe, IISS, in “Social Dimension of Integration inEstonia and Minority Education in Latvia”, ECMI Workshops “Social Dimensionof Integration in Estonia” 19-21 October 2001, Pärnu, Estonia (Informationreceived from the Legal Information Centre for Human Rights).23 Estonian Labour Force Survey, 3rd quarter 2001. The monthly “EstonianStatistics” No 10. Statistical Office of Estonia, Tallinn 2001http://www.stat.vil.ee/l-market/tt01_3kv/7.htm (Information received from theLegal Information Centre for Human Rights).24 UN Doc CEDAW.25 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.7.26 Riigikogu – the Estonian Parliament.27 Information on the 2003 elections can be obtained from the Estonian NationalElectoral Committee at www.vvk.ee.28 Article 21 Law on Citizenship.29 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.7.30 Newspaper Eesti Päevaleht of 8 January, 2003, Home violence hale women to theshelters.31 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.7.32 Voldemar Kolga, Estonia National Report on Law and Policy Addressing Men’sPractices Work Package 3, available at http://www.cromenet.org/customers/crome/crome.nsf/resources/768155295D5F88C1C2256B6C00307EB1/$file/wp3+Estonia.doc.33 §141 Penal Code.34 Josing, Ahven 1999:98, cited in, Voldemar Kolga, Estonia National Report onLaw and Policy Addressing Men’s Practices Work Package 3, available athttp://www.cromenet.org/customers/crome/crome.nsf/resources/768155295D5F88C1C2256B6C00307EB1/$file/wp3+Estonia.doc.35 Information received from Legal Information Centre for Human Rights.260

Estonia36 Concluding observations, UN Doc. CEDAW/C/2002/1/CRP.3/Add.7.37 Translated by the Estonian Legal Translation Centre http://www.legaltext.ee/et/andmebaas/ava.asp?m=022.38 UN Doc. CCPR/C/79/Add.59. (Concluding Observations/Comments).39 Human Rights in the OSCE Region: the Balkans, the Caucasus, Europe, CentralAsia and North America; Report 2001 (events of 2000), p.120.40 Information received from the Legal Information Centre for Human Rights.41 The CPT reports and the responses of the Estonian authorities are available on theCPT’s website (http://www.cpt.coe.int).261

Violence Against Women: 10 Reports / Year 2003Human Rights CommitteeSEVENTY-SEVENTH SESSION – 17 MARCH - 4 APRIL 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 40 OF THE COVENANTCONCLUDING OBSERVATIONS BY THE HUMAN RIGHTS COMMITTEE:ESTONIA1. The Committee considered the second periodic report of Estonia(CCPR/C/EST/2002/2) at its 2077th and 2078th meetings, held on 20and 21 March 2003 (see CCPR/C/SR.2077 and 2078) and adopted thefollowing concluding observations at its 2091st meeting(CCPR/C/SR.2091), held on 31 March 2003.A. Introduction2. The Committee welcomes the second periodic report of the Stateparty and expresses its appreciation for the frank and constructive dialoguewith the delegation. It welcomes the detailed answers that wereprovided to its written questions.3. While the report was submitted with some delay, the Committee notesthat it provides important information on all aspects of the implementationof the Covenant in the State party, as well as on concernsspecifically addressed by the Committee in its previous concludingobservations.B. Positive aspects4. The Committee expresses its satisfaction over several new legislativedevelopments in areas related to the implementation of the provisions262

Estoniaof the Covenant that have taken place in the State party since the submissionof the initial report.5. The Committee welcomes the measures taken by the State party tocreate the office of the Legal Chancellor and the addition ofOmbudsman functions to its responsibilities.6. The Committee welcomes the measures and legislation adopted bythe State party to improve the status of women in Estonian societyand to prevent gender discrimination. It particularly notes article 5 ofthe "Wages Act", which now prohibits the establishment of differentwage conditions on the basis of gender, and articles 120 to 122 andarticle 141 of the new Penal Code, which make domestic violence andmarital rape specific criminal offences.7. The Committee welcomes the delegation's affirmation that the problemof prison overcrowding is being resolved, through the decreasingnumber of persons detained owing, inter alia, to increasing resort toalternative forms of punishment, and the opening of a new spaciousprison in Tartu.C. Principal subjects of concern and recommendations8. The Committee is concerned that the relatively broad definition of thecrime of terrorism and of membership of a terrorist group under theState party's Criminal Code may have adverse consequences for theprotection of rights under article 15 of the Covenant, a provisionwhich significantly is non-derogable under article 4, paragraph 2.The State party is requested to ensure that counter-terrorism measures,whether taken in connection with Security Council resolution1373 (2001) or otherwise, are in full conformity with the Covenant.9. While welcoming the additional explanations of the delegation on acase of alleged ill-treatment committed by police officers, theCommittee remains concerned that acts of ill-treatment or other formsof violence perpetrated or condoned by law enforcement officials arenot prosecuted on the basis of the most appropriate criminal chargesbut only as minor offences.263

Violence Against Women: 10 Reports / Year 2003The State party should ensure that law enforcement officials are effectivelyprosecuted for acts that are contrary to article 7 of theCovenant, and that the charges correspond to the seriousness of theacts committed. The Committee also recommends that the State partyguarantee the independence from police authorities of the newly created"police control department", which is responsible for carryingout investigations of abuses committed by the police.10. The Committee takes note of the delegation's acknowledgement thatlegislation on detention of mental health patients is outdated and thatsteps have been taken to revise it, including the adoption of a DraftPatient Rights Act. In this regard, the Committee is concerned atsome aspects of the administrative procedure related to the detentionof a person for mental health reasons, in particular the patient's rightto request termination of detention, and, in the light of the significantnumber of detention measures that had been terminated after 14 days,the legitimate character of some of these detentions. The Committeeconsiders that a period of 14 days of detention for mental health reasonswithout any review by a court is incompatible with article 9 ofthe Covenant.The State party should ensure that measures depriving anindividual of his or her liberty, including for mental healthreasons, comply with article 9 of the Covenant. TheCommittee recalls the obligation of the State party underarticle 9, paragraph 4, to enable a person detained for mentalhealth reasons to initiate proceedings in order to review thelawfulness of his/her detention. The State party is invited tofurnish additional information on this issue and on the stepstaken to bring the relevant legislation into conformity withthe Covenant.11. The Committee is concerned at information that deserters from thearmed forces may have been kept in solitary confinement for up tothree months.The State party is under an obligation to ensure that thedetention of alleged deserters is in conformity with articles 9and 10 of the Covenant.264

Estonia12. In the light of the State party's legislation on the use of firearms, theCommittee expresses concern at the possibility to use lethal force incircumstances not presenting a risk to the life of others.The State party is invited to revise its outdated legislation to ensurethat the use of firearms is restricted by the principles of necessity andproportionality as reflected in articles 9 and 16 of the Basic Principleson the Use of Force and Firearms by Law Enforcement Officials(U.N. Doc. A/CONF.144/ 28/Rev.1 at 112 (1990)) (articles 7 and 10).13. While welcoming the precise information provided by the delegationon the procedure related to the determination of refugee status, theCommittee remains concerned that the application of the principle of"safe country of origin" may deny the individual assessment of arefugee claim when the applicant is considered to come from a safecountry.The State party is reminded that, in order to afford effective protectionunder articles 6 and 7 of the Covenant, applications for refugee statusshould always be assessed on an individual basis and that a decisiondeclaring an application inadmissible should not have restrictive proceduraleffects such as the denial of suspensive effect of appeal (articles6, 7 and 13).14. Regretting that the concerns of its previous concluding observations(paragraph 12) have not been met, the Committee remains deeplyconcerned by the high number of stateless persons in Estonia and thecomparatively low number of naturalizations. While the State partyhas adopted a number of measures designed to facilitate naturalization,a large number of stateless persons do not even initiate this procedure.The Committee takes note of the different reasons underlyingthis phenomenon but considers that this situation has adverse consequencesin terms of the enjoyment of the Covenant rights and that theState party has a positive duty to ensure and protect those rights.The State party should seek to reduce the number of stateless persons,with priority for children, inter alia by encouraging their parents toapply for Estonian citizenship on their behalf and by promotion campaignsin schools. The State party is invited to reconsider its positionas to the accessibility of Estonian citizenship to persons who have265

Violence Against Women: 10 Reports / Year 2003taken the citizenship of another country during the period of transitionand to stateless persons. The State party is also encouraged to conducta study on the socio-economic consequences of statelessness inEstonia, including the issue of marginalization and exclusion (articles24 and 26).15. The Committee is concerned that the duration of alternative servicefor conscientious objectors may be up to twice as long as the durationof regular military service.The State party is under an obligation to ensure that conscientiousobjectors may opt for alternative service, the duration of which iswithout punitive effect (articles 18 and 26).16. While welcoming the abolition of the requirement of proficiency inEstonian language for standing as a candidate in elections and theassertion by the delegation that the use or size of advertisements andsigns in other languages is not restricted, the Committee is concernedat the practical implementation of Estonian language proficiencyrequirements, including in the private sector and the effect this mayhave on the availability of employment to the Russian-speakingminority. It is also concerned that, in those areas where a substantialminority speaks primarily Russian, public signs are not posted also inRussian.The State party is invited to ensure that, pursuant to article 27 of theCovenant, minorities are able in practice to enjoy their own cultureand to use their own language. It is also invited to ensure that legislationrelated to the use of languages does not lead to discriminationcontrary to article 26 of the Covenant.17. Taking into account the considerable number of non-citizens residingin the State party as their own country, the Committee is concernedabout legislation prohibiting non-citizens from being members ofpolitical parties.The State party should give due consideration to the possibility fornon-citizens to become members of political parties (article 22).18.The Committee regrets the lack of detailed information about the actualresults of the activities of the Legal Chancellor and other bodies like266

Estoniathe Labour Inspectorate, in relation to their competence to receive anddeal with individual complaints.The State party is invited to furnish detailed information on the number,nature and outcome, as well as concrete examples, of individualcases submitted to the Office of the Legal Chancellor and other bodiesdealing with individual complaints.19. The State party should disseminate widely the text of its second periodicreport, the replies provided to the Committee's list of issues, andthe present concluding observations.20. In accordance with article 70, paragraph 5, of the Committee's rulesof procedure, the State party should provide within one year relevantinformation on the implementation of the Committee's recommendationsin paragraphs 10, 14 and 16 above. The third periodic reportshould be submitted by 1 April 2007.267

Violence against Women in MaliA Report to the Human Rights CommitteeContents1. Preliminary Observations .............................................................................................................................. 2711.1 Mali’s International Obligations ....................................................................................... 2721.2 Human rights situation in Mali ............................................................................................. 2732. De jure and de facto status of women ......................................................................................... 2752.1 Gender equality in legislation ................................................................................................ 2752.2 De Facto Status of Women .......................................................................................................... 2763. Violence against Women in the Family .................................................................................... 2773.1 Forced Marriage ......................................................................................................................................... 2773.2 Domestic Violence ................................................................................................................................... 2773.3 Marital Rape ..................................................................................................................................................... 2783.4 Cultural Practices in the Family that Violatethe Human Rights of Women and Girls ...................................................................... 2793.4.1 Early Marriage ................................................................................................................................ 2793.4.2 Dowry ........................................................................................................................................................... 2793.4.3 Polygamy ................................................................................................................................................... 2793.4.4 Female Genital Mutilation .......................................................................................... 2804. Violence Against Women in the Community ...................................................................... 2814.1 Rape ................................................................................................................................................................................ 2815. Violence Against Women at the Hands of State Agents .................................. 2825.1 Detention .............................................................................................................................................................. 2826. Conclusions and Recommendations ............................................................................................... 282Concluding observations of the Human Rights Committee: MaliSeventy-seventh session – 17 March - 4 April 2003Consideration of Reports Submitted by States PartiesUnder Article 40 of the Covenant ............................................................................................................. 288A. Introduction ............................................................................................................................................................ 288B. Positive aspects ..................................................................................................................................................... 288C. Principal subjects of concern and recommendations .................................. 288269

Mali1. Preliminary ObservationsThe submission of information specifically relating to violence againstwomen to the United Nations Human Rights Committee forms part ofOMCT’s Violence Against Women Programme which focuses on integratinga gender perspective into the work of the five “mainstream” UnitedNations human rights treaty monitoring bodies. OMCT’s gender analysesand reporting entail examination of the effects of gender on the form thathuman rights violations take, the circumstances in which the abuses occur,the consequences of those abuses, and the availability and accessibility ofremedies.OMCT notes with concern that Mali has only submitted its second periodicreport (UN Doc. CCPR/C/MLI/2003/2) to the Human RightsCommittee on its implementation of the International Convention on Civiland Political Rights (ICCPR) on 3 January 2003 whereas it was due on 11April 1986. The list of issues, drafted by the Human Rights Committeebefore the session, was drawn up in the absence of the governmentreport. OMCT regrets the late submission of the government report as thishampers a fruitful discussion between the government and the HumanRights Committee. Mali’s second through fifth periodic reports weredue on 11 April 1986, 1991, 1996 and 2001 respectively. Mali has anobligation under article 40, paragraph 1 to submit periodic reports onthe measures taken by the government to implement the rights proclaimedin the ICCPR and on the progress made in the exercise of thoserights.The Malian State report (UN Doc. CCPR/C/MLI/2003/2) fails to addressgender specific violence in any way. The report notes that women areaccorded formal legal equality and recognizes that discrimination againstwomen persists in some areas. However, the report neglects to examineviolence against women, including but not limited to, domestic violence,marital rape, rape, and female genital mutilation.With regard to violence against women, OMCT would like to evoke thatin paragraph 11 of General Comment 28 adopted by the Human RightsCommittee in March 2000, which examines the equality of rights betweenmen and women and updates its earlier General Comment on that topicadopted in 1981, 1 the Committee addresses the fact that much of the violencesuffered by women is violence that occurs at the hands of private271

Violence Against Women: 10 Reports / Year 2003individuals and recognises that this violence can amount to torture whichis prohibited by article 7 in the Covenant. The paragraph reads:“To assess compliance with article 7 of the Covenant, aswell as with article 24, which mandates special protectionfor children, the Committee needs to be provided informationon national laws and practices with regard to domesticand other forms of violence against women, including rape.It also needs to know whether the State party gives access tosafe abortion to women who have become pregnant as aresult of rape. The States Parties should also provide theCommittee information on measures to prevent forced abortionor forced sterilisation. In States Parties where the practiceof genital mutilation exists, information on its extentand on measures to eliminate it should be provided. Theinformation provided by States parties on all these issuesshould include measures of protection, including legal remedies,for women whose rights under article 7 have been violated.”In light of the lack of information provided on violence against women inMali, this report will focus on the linkage between gender and violenceagainst women in Mali. The report places particular emphasis on domesticviolence, early and forced marriages, the dowry system, polygamy andfemale genital mutilation. The report ends with conclusions and recommendations.1.1 Mali’s International ObligationsMali became a member State of the United Nations on 28 September1960. Mali acceded the ICCPR on 16 July 1976 and to the First OptionalProtocol to the Covenant on 24 October 2001. It is not a State party to theSecond Optional Protocol to ICCPR aiming at the abolition of the deathpenalty.Mali acceded to the Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment (hereafter the Convention againstTorture) on 26 February 1999. Mali is also a State Party to other internationaland regional human rights instruments prohibiting torture, andother cruel, inhuman or degrading treatment directed against women.272

MaliMali ratified the Convention on the Elimination of All Forms ofDiscrimination against Women on 10 September 1985 and acceded tothe Optional Protocol to the Convention on 5 December 2000. Mali’ssecond through fifth periodic reports (covering the period 1990 to 2002)have not been submitted to the Committee on the Elimination ofDiscrimination Against Women. The fifth periodic report was due 10October 2002.In 1992, the CEDAW Committee adopted General Recommendation 19,which states that “gender-based violence, which impairs or nullifies theenjoyment by women of human rights and fundamental freedoms undergeneral international law or under human rights conventions, is discriminationwithin the meaning of article 1 of the Convention.” It defines gender-basedviolence as “violence that is directed against a woman becauseshe is a woman or that affects women disproportionately. It includes actsthat inflict physical, mental or sexual harm or suffering, threats of suchacts, coercion and other deprivations of liberty.”Mali is also a State Party to the International Covenant on Economic,Social and Cultural Rights, the Convention on the Rights of the Child andthe Convention on the Elimination of Racial Discrimination.At the regional level, Mali is a State Party to the African Charter onHuman and Peoples Rights. Article 2 of the African Charter stipulatesthat “Every individual shall be entitled to the enjoyment of the rights andfreedoms recognised and guaranteed in the present Charter without distinctionof any such kind such as race, ethnic group, colour, sex, language,religion, political or any other opinion, national and social origin fortune,birth and other status.” Article 18(3) provides that State Parties shallensure the elimination of all forms of discrimination against women aswell as protection for the rights of women and children “as stipulated ininternational declarations and conventions.” Article 5 of the AfricanCharter prohibits torture, cruel, inhuman or degrading punishment ortreatment.1.2 Human rights situation in MaliChapter 1 of the Constitution provides for a catalogue of fundamentalrights and freedoms applicable in Mali. The chapter comprises 24 articles273

Violence Against Women: 10 Reports / Year 2003setting out the framework for the protection of civil, political, economic,social and cultural rights.The Constitution also provides for an independent judiciary. 2 However, inpractice the executive exerts influence over the judicial system. TheMinistry of Justice appoints and has the power to suspend judges; itsupervises both law enforcement and judicial functions. The Presidentheads the Superior Judicial Council, which oversees judicial activity. TheHuman Rights Committee has insisted that “the right to be tried by anindependent and impartial tribunal is an absolute right that may suffer noexception.” 3 This requirement is based on the principle that the differentorgans of the State must have exclusive power to decide on cases whichare put before it. The judiciary as a whole as well as every judge in particularmust be protected from any interference, inter alia, by the executiveauthority.The judicial system’s large case backlog results in long periods of pretrialdetention and lengthy delays in trials. In addition there werereports of corruption in the courts. In this respect, the UN SpecialRapporteur on the freedom of opinion and expression transmitted a caseto the government concerning the sentencing of the director-general of theOffice de radio-télévision du Mali (ORTM) to one month in prison and afine of 1 million CFA francs. Under the press law, he was convicted followingthe broadcast by ORTM of an interview in which the mayor ofBamako stated that magistrates are corrupt. The mayor was fined 3 millionCFA francs.The existence of trafficking in children for labour exploitation is anothergrave problem in Mali. The majority of those trafficked from Mali areboys from the areas of Ségou, Sikasso and Mopti. Networks for traffickingchildren to Côte d’Ivoire were established in the early 1990s followinga demand for cheap labour on its cotton plantations. Most children arerecruited by intermediaries and sold on to plantation owners. Traffickedchildren can work from 10 to 20 hours a day, carry heavy loads, operatedangerous tools and lack adequate food or drink. The Government of Maliis currently working with the International Labour Organization (ILO) tocombat this problem. In the context of the ILO-IPEC program, an agreementhas been reached between Côte d’Ivoire and Mali regarding therepatriation of victims and extradition of traffickers. 4274

MaliProstitution is widespread in Mali. The main reason women and girlsgo into prostitution is economic. The girls and women that fall intoprostitution come from an economic background that is deprived. Theycome from families that have many children, where there are economicproblems and a constant fight for survival. Several NGOs in Mali areworking to combat the problem of prostitution and help the womeninvolved.2. De jure and de facto status of women2.1 Gender equality in legislationAlthough the Constitution of Mali proclaims in its preamble to defend therights of women, 5 there are many laws in Mali that are facially discriminatory.For instance, it has been reported to OMCT that Malian womenwho marry foreigners are not able to pass on their Malian nationality totheir children from such a marriage. On the other hand, Malian men sufferfrom no such restriction in passing on their Malian nationality to theirchildren. 6 Such discrimination in citizenship extends beyond the blatantdifferential treatment of men and women in Mali. Under such a law, thechildren of women who marry non-Malian nationals are not eligible forthe rights and privileges of Malian citizenship.Other discriminatory provisions in Malian legislation limit a woman’spower over the decisions affecting her own life. For example, with regardto type of marriage, the choice between a monogamous marriage and apolygamous marriage is the decision of the husband, not the wife. 7 Awoman’s rights are limited in marriage by law in other ways, includingher husband’s power over her right to work and the choice of residence. 8Malian law also discriminates against women in marriage by providingthat wives are obligated to obey their husbands. 9With respect to minimum age of marriage, the Malian law provides fordifferent ages between girls and boys. The law expressly allows earlymarriage of girls, providing that girls may be married at 15, while theminimum age for marriage of boys is 18. 10275

Violence Against Women: 10 Reports / Year 2003With regard to a woman’s right to remarry after divorce from her husbandor the death of her husband, Malian law is also facially discriminatory.According to Malian law, a divorced woman must wait 3 months after herdivorce before she is able to remarry. 11 This provision does not apply tomen, who are able to remarry even during the divorce proceedings, or,under the polygamous system, while they are still married to otherwomen. If the woman is widowed, then she must wait 4 months and 10days before she can remarry. 122.2 De Facto Status of WomenThe prevailing image of women in Malian society is in their roles as wifeand mother. As such, women remain in the private sphere and do nothave much access to the public sphere, which is traditionally reservedfor men. In accordance with these roles, women are blamed if theirhusbands are dirty or badly dressed, as well as if their child misbehaves.These attitudes towards women encourage the stereotype that womenare inferior to men. 13 Women who try to rebel against these imagesand participate in the public sphere are viewed badly by society,including by some women, and are accused of “attempting to wear pants,”meaning trying to become a man. Thus, women do not participate inpolitics or other civic affairs with fewer than 10% of all elected officialsbeing women. 14 In essence, such views reflect an attitude that social andpolitical power is a masculine sphere that women should avoid.The marriage laws in Mali contribute to these stereotypical images ofwomen by declaring that men are the head of the household and thatwomen must obey their husbands. These laws reflect the reality that husbandsmake 90% of all decisions in the house. 15In education, women are also at a de facto disadvantage. Boys’ educationis considered a better investment for parents than girls’ educationand therefore, there remains a gender disparity in education inMali. 16 UNICEF statistics indicate that women’s literacy lags behindmen’s, at rates of 33% and 48% respectively. At the primary school level,the rate of girls’ enrolment is 33% while boys’ enrolment rate is 47%,and at the secondary school level, boys’ enrolment is double that ofgirls (14% and 7% respectively). 17 Additionally, forced and early276

Malimarriages, as well as pregnancy, prevent girls from continuing education.18The government of Mali has tried to rectify some inequalities betweenmen and women by passing new laws. For example, a law was passedattempting to give women better access to land. 19 However, because ofcultural attitudes towards women and a lack of political will, this law hasnot been effectively implemented. Additionally, the Malian governmentasserts that a Family Code is in the process of being legislated. 20 OMCTinsists that such legislation must eliminate all facially discriminatory provisionsin Malian law with respect to gender as well as establish effectivemechanisms for full implementation of all non-discriminatory provisions.3. Violence against Women in the Family3.1 Forced MarriageIt has been reported that forced marriage frequently occurs in Mali, eventhough it is formally illegal. 21 Although the consent of both the wife andhusband are required before a legal marriage can occur, young girls aresometimes pressured by their families, and even by state agents responsiblefor preventing forced marriages, to enter into a customary law marriage.22 Oftentimes, people in the community and women in particular areunaware of the statutory requirements for a legal marriage and will enterinto a customary law marriage, which has no legal standing, without fullknowledge of their rights. 23 Forced marriages make women vulnerable toviolence since, if they lack the power to decide to enter into the union,they likely lack the power to decide to leave the union.3.2 Domestic ViolenceAlthough the Penal Code was amended in 2001, there are no specific provisionsoutlawing domestic violence. 24 Domestic violence is also notaddressed in the State Party Report submitted by Mali, contrary to therequest in the General Comment 28, paragraph 11, of the Human RightsCommittee.277

Violence Against Women: 10 Reports / Year 2003Reports indicate that domestic violence is an accepted part of daily life inMali. As such, women rarely report instances of domestic violence, or ifthey do report the violence, social pressures encourage the victim to withdrawthe complaint before conviction of the perpetrator. 25 The silencearound this violence may explain the lack of information regarding thecrime of domestic violence. Although some efforts have been made by theNGO community, particularly by the Association pour le Progrés et laDéfense des Droits des Femmes (APDF), to encourage women to speakout against domestic violence, the problem remains. APDF reports that inthe two year period from 2001 through 2002, they recorded 511 incidentsof violence against women (in the city of Bamako). 26 Without moreproactive efforts by the government to raise awareness about the pervasivenessof domestic violence and women’s right to be free from such violence,women will continue to be victims of domestic violence.It is reported that the government does not offer any services to womenvictims of domestic violence. 27A specific law outlawing domestic violence and providing special servicesto victims is essential to effectively combating this problem.Moreover, OMCT would also urge the government of Mali to collect statisticsand other information regarding domestic violence and includesuch information in its future reports to UN human rights treaty bodies.3.3 Marital RapeUnder the Malian Penal Code, marital rape is not a crime. 28 The SpecialRapporteur on Violence Against Women, it Causes and Consequencesnoted in her most recent annual report that, in many countries, husbandscan be prosecuted for assaulting their wives but not for raping their wives.She explains that under international norms, men and women are entitledto equal rights and responsibilities in marriage 29 and later asserts that thefailure to criminalize marital rape is, in effect, “sanctioning a certain measureof violence by the husband against the wife in the home.” 30In line with the assertions of the Special Rapporteur, OMCT views maritalrape as a grave violation of a woman’s basic human right to be freefrom violence.278

Mali3.4 Cultural Practices in the Family that Violate the Human Rightsof Women and Girls3.4.1 Early MarriageStatistics have shown that women in Mali are married at a young age,with 22% being married by age 15 and 93% married before the age of22. 31 The average age of marriage in Mali is reported to be 16. 32Although the age of marriage appears to be rising slowly, the discriminatorylaw which allows women to be married as young as 15 prevents fulleradication of early marriage.Early marriage of girls makes them vulnerable to violence because oftheir disadvantaged position due to both their gender and their age.Frequently, when girls are married as children, their husbands are substantiallyolder and able to exert considerable power over their child wives.Furthermore, early marriage often leads to early pregnancy and may thusprolong women’s reproductive life. Childbearing during early or middleadolescence, before girls are biologically or psychologically mature, isassociated with adverse health outcomes for both the mother and thechild. 33 3.4.2 DowryIt appears that in Mali, a husband must pay a dowry for his wife. In thecase of divorce, a woman must, by law, repay the dowry to the husband. 34OMCT fears that the “purchasing” of brides through the payment of adowry may relegate the woman’s status to little more than a piece ofchattel. The Special Rapporteur on Violence Against Women, its Causesand Consequences, in her 2002 annual report, recognized that the practiceof dowry payments can lead to abuse of women because of the perceptionof women as property. 353.4.3 PolygamyPolygamy is common in Mali, with many people following Islamic lawswhich permit the practice. 36 Polygamy is also legal under Malian law, asmentioned above. About 43% of women and 24% of men live in polygamousunions in Mali. 37 279

Violence Against Women: 10 Reports / Year 2003General Recommendation #21 issued by the Committee on theElimination of Discrimination Against Women states that “[p]olygamousmarriage contravenes a woman’s right to equality with men, and canhave such serious emotional and financial consequences for her and herdependents that such marriages ought to be discouraged and prohibited”and asserts that polygamy is a violation of Convention on the Eliminationof All Forms of Discrimination against Women. Considering this GeneralRecommendation and the serious negative effects that polygamy can haveon a woman’s physical and mental health, efforts should be made to raiseawareness about the harms of such a practice and to outlaw the practice.3.4.4 Female Genital MutilationAccording to the World Health Organisation, female genital mutilation(FGM) is defined as comprising “all procedures involving partial or totalremoval of the external female genitalia or other injury to the female genitalorgans for cultural or other non-therapeutic reasons.” 38 Factors such asreligion, nationality and ethnicity result in differing practices concerningFGM. Because FGM varies across regional and ethnic lines, four classificationshave been recommended by the World Health Organisation inorder to clarify and standardize the terminology.Type I: Clitoridectomy: Excision of the prepuce, with orwithout excision of part or all of the clitoris.Type II: Excision: Excision of the prepuce and clitoris withpartial or total excision of the labia minora.Type III: Infibulation: Excision of part or all of the externalgenitalia and stitching/narrowing of the vaginal opening.Type IV: Unclassified: includes pricking, piercing, or incisingof the clitoris and/or labia; stretching of the clitorisand/or labia; cauterisation by burning of the clitoris and surroundingtissues; scraping of tissue surrounding the vaginalorifice (angurya cuts) or cutting of the vagina (gishiri cuts);introduction of corrosive substances or herbs into the vaginato cause bleeding or for the purpose of tightening or narrowingit; and any other procedure that falls under the definitionof female genital mutilation. 39280

MaliFGM is extremely common in Mali, with 94% of women having experiencedthe procedure in both urban and rural areas of the country. 40 Amajority of women (80%) support the practice in Mali. 41 Generally, thesurgery is performed on girls between the ages of 6 and 8. 42Clitoridectomy and excision are the most common types of FGM performedon girls in Mali. 43FGM has serious physical and psychological consequences and it hasbeen widely condemned by health professionals around the world.Particularly, the practice of FGM can cause inflammation and infection atthe time of the procedure and it can seriously affect the health of a womanlater in her life in pregnancy and during childbirth.Although the government has instituted an executive order aimed at raisingawareness about the harms of FGM, outlawing the practice is notenvisioned by the government as of yet.The Human Rights Committee, in its General Comment 28, paragraph 11,specifically requests information regarding FGM from reporting countries.Mali neglected to include information on this topic in its report andis thus urged to include such information in its future reports.4. Violence Against Women in the Community4.1 RapeMalian legislation provides that rape can be punished with 5 to 20 yearsof “hard labour” and potentially can include exile from the community.The crime of rape is aggravated if the rape is committed by several personsor if the victim is under 15 years of age. 44Rape is not addressed in the government report of Mali, despite therequest for information concerning this topic in General Comment 28,paragraph 11, of the Human Rights Committee.There appears to be a lack of statistical information concerning rape.Reports indicate that families are reluctant to report rape in order to preservethe “honour” of the victim and the family. 45 Cultural attitudes that281

Violence Against Women: 10 Reports / Year 2003treat rape as a shameful taint on the family honour rather than recognizingthe violation of the victim’s rights reinforce a culture of silence regardingrape and inhibit the eradication of the crime.5. Violence Against Women at the Hands of State AgentsIt is reported that state agents, particularly police, prosecutors and judgescontinue to treat women victims of violence without any regard andsometimes even with violence. The victims are blamed by the authoritiesfor the crimes they have suffered. 46 Although APDF has conducted manytrainings to try to counteract these attitudes towards women, muchremains to be done by the government to ensure that its agents do notcommit violence against women and treat women victims of violencewith dignity and respect.5.1 DetentionWomen are vulnerable to violence in detention at the PoliceCommissariats because there is no specific place for women detainees. Inviolation of article 8 of the Standard Minimum Rules for the Treatment ofPrisoners, women and men are sometimes kept in the same cells, renderingfemale inmates at risk of sexual violence by the male inmates. Womenare also sometimes subject to abuse by the police who are in charge of theinvestigation. 47At the Bollé Center, there is a detention center specifically for womenwhere they have access to aid from NGOs and other services. 486. Conclusions and recommendationsAlthough Mali has ratified numerous international and regional instrumentsguaranteeing the human rights of women, and despite the fact thatMali’s Constitution declares that women’s human rights will be protected,women are discriminated against because of their gender and subjected togender-specific violence. There still exist many laws in Mali that arefacially discriminatory against women as well as cultural attitudes282

Malitowards and stereotypes of women, which prevent women’s full enjoymentof their human rights.OMCT regrets that, despite General Comment 28 adopted by the HumanRights Committee in March 2000, the Government report contains noinformation on violence against women and would call upon theGovernment to provide such information, including statistics on rates ofviolence against women in its next periodic report to the Human RightsCommittee. It would also recommend Mali to submit the next report indue time.OMCT recalls that Article 3 of the International Covenant on Civil andPolitical Rights obligates member States to ensure the equal rights of menand women to the enjoyment of all civil and political rights set forth in theCovenant. Mali’s laws demonstrate a disregard for this article, with severalprovisions in the laws that facially discriminate against women in Mali.OMCT insists that the Malian government should eliminate all faciallydiscriminatory laws. For example, any law denying the right of a Malianwoman to pass on her citizenship to her child fails to guarantee equalitybetween women and men in Mali and should be repealed. Additionally,laws granting husbands control over decisions regarding type of marriage,the marital residence, and their wife’s ability and right to work should berepealed to grant women control over their own lives and to promotewomen to a position of equal decision-making within marriage.OMCT further recommends that discriminatory laws concerning remarriageof women who are divorced or widowed be removed.OMCT not only considers that facially discriminatory laws must beremoved, but new laws aimed at guaranteeing women’s equal rights alsomust be implemented. Such laws must be accompanied with the necessarypolitical will for enforcement.Cultural attitudes and stereotypes that consider women inferior make fullequality of women with men in Mali impossible to achieve. OMCT considerseducation and awareness raising campaigns essential to combatingdiscrimination and violence against women. Thus, besides new legislationwhich is more protective of women’s human rights, the government mustmake efforts to raise awareness among the general population about lawsexisting in Mali that protect women’s human rights. Additionally, such283

Violence Against Women: 10 Reports / Year 2003awareness raising campaigns should address the gender disparity in educationin Mali and encourage people to consider their daughter’s educationan investment as important as the education of their sons.OMCT is concerned that the laws of Mali provide for differing minimumages of marriage for girls and boys, with girls at 15 and boys at 18. Earlymarriage has been shown to render girls more vulnerable to domestic violenceand, by prolonging their reproductive lives, it can also lead to otherserious health consequences. OMCT would strongly encourage the governmentto raise this age limit to 18 years for both women and men and toensure that the legal age limit for marriage is strictly enforced.Practices such as early marriage, dowry payments, and polygamy can leadto violence against women because women often find themselves powerlesswith such arrangements. OMCT strongly encourages the governmentto outlaw such practices.OMCT is particularly concerned by reports that forced marriage occurs inMali, and is alarmed that State officials sometimes participate in puttingpressure on a girl to submit to a forced marriage. Such a practice is a violationof a woman’s fundamental human right to freely enter into marriage,contravening article 23(3) of the International Covenant on Civiland Political Rights. Although Malian law claims that marriage is onlypossible with the consent of both spouses, the government must alsoensure the full implementation and enforcement of this law.Although domestic violence is not well documented in Mali, it appears tobe a serious problem. OMCT is very concerned that the Government hasyet to develop a comprehensive policy and legislative response to thisproblem. OMCT would like to call upon the Government to urgently draftand adopt specific legislation for the prevention, prohibition and punishmentof domestic violence along the lines of the guidelines submitted bythe United Nations Special Rapporteur on violence against women to thefifty-second session of the United Nations Commission on Human Rights(U.N. doc. E/CN/.4/1996/53, Add.2). The measures that the governmentshould envisage incorporating within domestic violence legislationinclude; the establishment of a system for the enforcement of ex-parterestraining and protective orders that would have the effect of ensuringthat the perpetrator could not approach the victim and other witnesses andthat the perpetrator be obliged to vacate the family home; and provisions284

Malion the rights of victims to receive appropriate legal, medical and otherassistance including alternative shelter and reparations.Additionally, in light of reports that women victims of violence are sometimestreated badly, or even subject to more violence, when they report thecrime to police, OMCT would recommend that all law enforcement personneland members of the judiciary be given appropriate gender-sensitivetraining in responding to cases of domestic violence, rape and other formsof violence against women. OMCT also strongly encourages the governmentto establish a female police authority.OMCT is very concerned that marital rape is not a crime in Mali andwould call upon the Government to amend the Penal Code in order toensure that rape in the context of marriage is criminalised.OMCT is gravely concerned about the widespread practice of FGM inMali, which violates the right to life and physical integrity, as well asendangers the health of women and girls. OMCT calls upon the governmentto take stronger measures for the eradication and punishmentof female genital mutilation including through the adoption of legislationprohibiting the practice and through the involvement of religious and communityleaders in education and awareness-raising campaigns on FGM.The lack of information concerning the occurrence of rape in Mali isanother cause of concern for OMCT. Although there is legislation thatpunishes rape severely, it appears that victims of this crime are reluctantto report it, in the interest of preserving the “honour” of the woman andher family. OMCT urges the government to raise awareness about availablelegal, medical and social remedies for rape victims. OMCT alsoinsists that all incidents of rape be investigated and that perpetrators areprosecuted and punished with due diligence.Although OMCT commends the establishment of a separate facility forwomen at the Bollé Center in Mali, we remain concerned that women indetention at Police Commissariats are sometimes kept in the same cellsas men and are vulnerable to violence at the hands of prison agents. Allnecessary efforts should be taken to guarantee women the right to be freefrom torture and other cruel, inhuman or degrading treatment or punishmentand OMCT would urge the government of the Mali to implement theStandard Minimum Rules for the Treatment of Prisoners.285

Violence Against Women: 10 Reports / Year 2003Finally, OMCT would insist on the need to fully implement all provisionsof the Convention on the Elimination of Discrimination against Women,the Declaration on the Elimination of Violence against Women as well asthe Beijing Platform of Action, in Mali as these are the most relevantinternational instruments concerned with all forms of violence againstwomen.1 The complete text is available on the website of the Office of the HighCommissioner for Human Rights: www.unhchr.ch and can be obtained under thesymbol: UN Doc. CCPR/C/21/Rev.1/Add.10.2 Article 81 Constitution of Mali.3 Gonzales del Rio v. Peru (comm.. 263/1987, paragraph 5.2, decision adopted on28 October 1992).4 For further details, please see www.ilo.org.5 Mali Constitution (2003).6 Code de la Nationalité (information from the Association pour le Progrés et laDéfense des Droits des Femmes (APDF), a member of the OMCT-SOS TortureNetwork).7 Code Malien du Mariage et de la Tutelle (1962), art. 7.8 Ibid. art. 34 &38.9 Ibid. art. 32.10 Ibid. chap. III, art. 4.11 Ibid. art. 80.12 Ibid. art. 101.13 Information received from APDF (27.02.03).14 Center for Reproductive Rights, Claiming Our Rights: Surviving Pregnancy andChildbirth in Mali, p. 51 (2003).15 Information received from APDF (27.02.03).16 Ibid.17 See www.unicef.org for statistics.18 Information received from APDF (27.02.03).19 Law No. 86-96/AN-RM (12 July 1986).20 UN Doc. CCPR/C/MLI/2003/2 (13 January 2003), p. 34.286

Mali21 Center for Reproductive Law and Policy, Reproductive Rights of Young Girls andAdolescents in Mali: A Shadow Report, p. 14, available at www.reproductiverights.org.22 Ibid.23 Ibid.24 Information received from APDF (27.2.03).25 Center for Reproductive Law and Policy, Reproductive Rights, Ibid., p. 16.26 Information received from APDF (19.08.02).27 Ibid.28 Center for Reproductive Law and Policy, Reproductive Rights, Ibid., p. 16.29 U.N. Doc. E/CN.4/2002/83, 62.30 Ibid., 101.31 Center for Reproductive Law and Policy, Reproductive Rights, Ibid., p. 14, availableat www.reproductiverights.org.32 Population Reference Bureau, Mali, Profil Démographique ; see also Protect theLives of Pregnant Women, Rights Groups Urge, Africa News, Feb. 6, 2003(claiming that median age of marriage for women is 16.5 years).33 WHO Doc. WHO/FRH/WHD/97.8, Violence Against Women.34 Code Malien du Mariage et de la Tutelle (1962), art. 3.35 U.N. Doc. E/CN.4/2002/83.36 Information received from APDF (27.02.03)37 Center for Reproductive Rights, Claiming Our Rights, Ibid., p. 53.38 WHO, Female Genital Mutilation : An Overview, 1998.39 Ibid.40 Center for Reproductive Rights, Claiming Our Rights, Ibid., p. 51.41 Ibid., p. 52.42 Ibid.43 Ibid.44 Center for Reproductive Law and Policy, Reproductive Rights, Ibid., p. 15.45 Ibid., p. 16.46 Information received from APDF (27.02.03)47 Ibid.48 Ibid.287

Violence Against Women: 10 Reports / Year 2003Human Rights CommitteeSEVENTY-SEVENTH SESSION – 17 MARCH - 4 APRIL 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 40 OF THE COVENANTCONCLUDING OBSERVATIONS BY THE HUMAN RIGHTS COMMITTEE:MALI1. The Human Rights Committee considered the second periodic reportof Mali (CCPR/C/MLI/2003/2) at its 2083rd and 2084th meetings,held on 24 and 25 March 2003 (CCPR/C/SR.2083 and 2084). Itadopted the following concluding observations at its 2095th and2096th meetings (CCPR/C/SR.2095 and 2096), held on 2 and 3 April2003.A. Introduction2. The Committee welcomes the submission of the second periodicreport of Mali and the opportunity thus afforded to it to resume itsdialogue with the State party after an interval of more than 20 years.In the view of the Committee non-submission of a report over such alengthy period reflects a failure on the part of Mali to discharge itsobligations under article 40 of the Covenant and an obstacle to indepthconsideration of the measures to be taken to ensure satisfactoryimplementation of the Covenant. The Committee invites the Stateparty to submit its reports henceforth in accordance with the reportinginterval established by the Committee.3. The Committee welcomes the information provided on political andconstitutional developments in the State party as well as on the constitutionaland legal framework created by the democratic renewal since288

Mali1990. Nevertheless it regrets the formalistic nature of the second periodicreport, which is not in accordance with the Committee's guidelines:the report contains very little information on the day-to-dayimplementation of the Covenant or on factors and difficulties encountered.The Committee notes with regret that the report does notaddress the issues transmitted to the State party in advance. It regretsthat the delegation was unable to reply in depth to the questions andconcerns raised in the list of issues as well as during consideration ofthe report.B. Positive aspects4. The Committee welcomes Mali's transition to democracy in the early1990s. It notes the efforts made by the State party to ensure greaterrespect for human rights and establish a State governed by the rule oflaw through the initiation of wide-ranging programmes of legislativereform, settlement of the conflict in the north and establishment of theposition of ombudsman. The Committee notes that these efforts havebeen made despite the meagre resources available to the State party,and the difficulties facing it.5. The Committee welcomes the moratorium on the application of thedeath penalty in force in Mali since 1979, and the current trendtowards the abolition of capital punishment.6. The Committee commends the State party on the measures it hastaken to combat the trafficking of Malian children to other countries.C. Principal subjects of concern and recommendations7. The Committee notes that under the Constitution treaties take precedenceover legislation and that, according to information supplied bythe delegation, the Covenant can be invoked directly before nationalcourts. It regrets, however, that specific instances in which theCovenant has been directly invoked, or in which the ConstitutionalCourt has considered the compatibility of national legislation with theCovenant, have not been brought to its attention.289

Violence Against Women: 10 Reports / Year 2003The State party must ensure that judges, lawyers and court officers,including those already in service, are trained in the content of theCovenant and the other international human rights instruments ratifiedby Mali. The Committee wishes to be provided with more comprehensiveinformation on the effective remedies available to individualsin the event of violation of the rights set forth in the Covenant, as wellas instances in which courts or tribunals have invoked the provisionsof the Covenant.8. The Committee notes with concern that the National AdvisoryCommission on Human Rights, established in 1996, is yet to meet.The State party should take appropriate measures to allowthe National Advisory Commission on Human Rights to function,in accordance with the Principles relating to the status of nationalinstitutions for the promotion and protection of human rights("Paris Principles"), as set forth in General Assembly resolution48/134.9. The Committee, while welcoming the conclusion in 1992 of theNational Pact between the Government and the rebel movement in thenorth of the country, regrets that it has not been provided with adequateinformation on the status of implementation of the peace agreements.The Committee wishes to receive more detailed information in thisregard, in particular on the repatriation of Malian refugees, economicand social development in the north, and the effects of the policy ofdecentralization on pacification and the situation of human rights inthat region.10. While welcoming the establishment of a Ministry for theAdvancement of Women, Children and the Family, the Committeeexpresses its grave concern at the continued existence in Mali of legislationwhich discriminates against women, in particular with regardto marriage, divorce, and inheritance and succession, and of discriminatorycustomary rules relating to property ownership. TheCommittee, while appreciating that adoption of a Family Coderequires wide-ranging consultations, notes with concern that the proposedreform, ongoing since 1998, has not yet concluded. The290

MaliCommittee is also concerned by information that the practice of thelevirat, a practice whereby a widow is inherited by the deceased husband'sbrothers and cousins, is said to persist in Mali (articles 3, 16and 23 of the Covenant).(a) The State party should expedite adoption of the Family Code; theCommittee recommends that it should comply with the provisions ofarticles 3, 23 and 26 of the Covenant, in particular with regard to therespective rights of spouses in the context of marriage and divorce. Inthis connection the Committee draws the attention of Mali to itsGeneral Comment No. 28 (2000) on equality of rights between menand women, in particular with regard to polygamy, a practice whichviolates the dignity of women and constitutes unacceptable discriminationagainst women. The State party should abolish polygamy onceand for all.(b) Particular attention should be paid to the question of early marriageby girls, a widespread phenomenon. The State party should raisethe minimum legal age for marriage by girls to the same age as forboys.(c) The State party should establish a succession regime that does notdiscriminate against women: equality of heirs without discriminationon the basis of sex should be guaranteed, and the State should ensurethat there are better guarantees of the rights of widows and that onsuccession there is a fair distribution of assets.(d) The State party should abolish the levirat once and for all andapply appropriate penalties against those engaging in the practice, andtake appropriate measures to protect and support women, especiallywidows.11. The Committee notes with concern that a very high percentage ofwomen in Mali have reportedly been subjected to genital mutilation.The Committee welcomes the programmes already implemented bythe authorities and non-governmental organizations to combat thepractice, but regrets that there is no specific legal prohibition. TheState party, moreover, has not been able to provide precise informationon the specific results produced by the actions already taken (articles3 and 7 of the Covenant).291

Violence Against Women: 10 Reports / Year 2003The State party should prohibit and criminalize the practice of femalegenital mutilation so as to send a clear and strong signal to those concerned.The State party should strengthen its awareness-raising andeducation programmes in that regard, and inform the Committee, in itsnext periodic report, of efforts made, results obtained, and difficultiesencountered.12. The Committee is concerned about reports of domestic violence inMali and the failure by the authorities to prosecute the perpetrators ofthese acts and to take care of the victims. Bearing in mind the delegation'sreply, to the effect that domestic violence is punishable underthe current provisions of the Penal Code, the Committee stresses theneed for special legislation to deal with such violence, given its specificnature (articles 3 and 7 of the Covenant).The State party should adopt specific legislation expressly prohibitingand punishing domestic violence. Victims should be properly protected.The State party should adopt a policy of prosecuting and punishingsuch violence, including by issuing clear directives to that effectto its police and through appropriate awareness-raising and trainingmeasures for its officials.13. The Committee states its concern about reports that women do notenjoy rights on an equal basis with men as regards political participationand access to education and employment.The State party should strengthen its efforts to promote the situationof women in the area of political participation, access to educationand access to employment, and invites the State party to give information,in its next report, on the action it has taken and the resultsobtained.14. While noting the considerable efforts made by the State party, theCommittee remains concerned by the high maternal and infant mortalityrate in Mali, due in particular to the relative inaccessibility ofhealth and family planning services, the poor quality of health careprovided, the low educational level and the practice of clandestineabortions (article 6 of the Covenant).292

MaliSo as to guarantee the right to life, the State party should strengthen itsefforts in that regard, in particular in ensuring the accessibility ofhealth services, including emergency obstetric care. The State partyshould ensure that its health workers receive adequate training. Itshould help women avoid unwanted pregnancies, including bystrengthening its family planning and sex education programmes, andensure that they are not forced to undergo clandestine abortions, whichendanger their lives. In particular, attention should be given to theeffect on women's health of the restrictive abortion law.15. The Committee is concerned by reports of cases of torture and extrajudicialexecutions, allegedly committed by soldiers in 2000 followingthe murder of three tourists in Kidal. The Committee finds it difficultto accept the view of the delegation that there were no extrajudicialexecutions, even though no inquiry has been conducted by the Stateparty. The Committee is also seriously concerned by the delegation'sstatement that no inquiries have been conducted into the complaintsof torture and inhuman or degrading treatment made by membersof opposition parties arrested in 1997, because of the national reconciliationprocess and the need to protect public order (arts. 6 and 7).The State party should avoid the growth of a culture of impunity forthe perpetrators of human rights violations, and should ensure thatsystematic inquiries are conducted into allegations of violence againstlife and limb by its officials.16. The Committee regrets that the State party has not given a clearresponse to the reports of slavery-like practices and hereditary servitudein the north of the country. While domestic law does not authorizesuch practices, the Committee is seriously concerned about theirpossible survival among the descendants of slaves and the descendantsof slave-owners. The Committee stresses that the lack of complaintsabout such practices cannot be adduced as proof that thepractices themselves do not exist (art. 8).The State party should conduct a careful study of the relationsbetween the descendants of slaves and the descendants of slave-ownersin the north of the country, with a view to determining whetherslavery-like practices and hereditary servitude still continue and, if so,to inform the Committee of measures taken in response.293

Violence Against Women: 10 Reports / Year 200317. Recalling the efforts undertaken by the State party in this regard, theCommittee remains concerned by the trafficking of Malian children toother countries in the region, in particular, Côte d'Ivoire, and theirsubjection to slavery and forced labour (art. 8).The State party should take action to eradicate this phenomenon.Information on measures taken by the authorities to prosecute the perpetratorsof this traffic, as well as more precise details of the numbersof victims and of children benefiting from protection, repatriation andreintegration measures, should be provided in the next periodic report.18. While welcoming the various programmes adopted by the State party,the Committee is very concerned about the situation of migrant girlsleaving the countryside for the towns to work as domestic servantsand who, according to some reports, work an average of 16 hours aday for very low or non-existent wages, are often the victims of rapeand ill-treatment, and may be forced into prostitution (art. 8).The State party should intensify its efforts to punish those responsiblefor the exploitation of these migrant girls. The State party shouldadopt and develop appropriate complaint and protection mechanismsand is urged to provide information on the number of girls subjectedto such exploitation, the number of those benefiting from protectionand reintegration measures, and the content of its labour legislationand criminal law in this area.19. The Committee notes that, under Malian law, police custody may beextended beyond 48 hours, and that such extensions are authorized bythe public prosecutor.The State party should: (a) supplement its legislation to conform tothe provisions of article 9, paragraph 4, of the Covenant, whichrequires that a court decide without delay on the lawfulness of detentionin custody; and (b) supervise the conditions of such custody,in accordance with article 9 of the Covenant. Precise informationabout the rights of persons in custody, measures to uphold these rightsin practice and the methods of supervising conditions under whichpeople are held in custody should be provided in the next periodicreport.294

Mali20. The Committee is concerned by reports of the hardship suffered bysome 6,000 Mauritanian refugees who, for the last 10 years, havebeen living in the west of the country (Kayes region), are not registered,possess no identity papers, have the de facto status of statelesspersons and whose right to physical security is not sufficiently protected.The State party should enter into discussions with the Office of theUnited Nations High Commissioner for Refugees (UNHCR), with aview to improving the status and conditions of these persons.21. The Committee sets 1 April 2005 as the date of submission of Mali'sthird periodic report. It requests that the text of the State party's secondperiodic report and its present concluding observations should bepublished and widely disseminated throughout the country and thatthe third periodic report should be brought to the attention of civilsociety and non-governmental organizations working in Mali.22. In accordance with rule 70, paragraph 5, of the Committee's rules ofprocedure, the State party should within one year provide informationon its response to the Committee's recommendations contained inparagraphs 10 (a) and (d), 11 and 12. The Committee requests theState party to provide in its next report information on the other recommendationsmade and on the implementation of the Covenant as awhole.295

Violence against Women in RussiaA Report to the Committee on Economic, Socialand Cultural RightsContents1. Preliminary Observations .............................................................................................................................. 2991.1 Human Rights in Russia ..................................................................................................................... 3001.2 Chechnya ................................................................................................................................................................ 3022. Status of Women in the Russian Federation ...................................................................... 3043. Violence Against Women in the Family ..................................................................................... 3063.1 Domestic Violence ................................................................................................................................... 3063.2 Marital Rape ..................................................................................................................................................... 3093.3 Polygamy .................................................................................................................................................................. 3094. Violence Against Women in the Community ...................................................................... 3104.1 Rape ................................................................................................................................................................................ 3104.2 Trafficking .......................................................................................................................................................... 3114.3 Sexual Harassment ................................................................................................................................... 3135. Violence Against Women Perpetrated by State Agents ..................................... 3145.1 Violence against Women in Prison ................................................................................... 3145.2 Violence Against Women Human Rights Defenders ............................... 3156. Violence Against Women in Chechnya ....................................................................................... 3167. Conclusions and Recommendations ............................................................................................... 321Concluding observations of the Committee on Economic, Socialand Cultural Rights: Russian FederationThirty-first session – 10-28 November 2003Consideration of Reports Submitted by States PartiesUnder Articles 16 & 17 of the Covenant ............................................................................................. 328A. Introduction ............................................................................................................................................................ 328B. Positive aspects ..................................................................................................................................................... 328C. Factors and difficulties impeding the implementationof the Covenant .................................................................................................................................................. 328D. Principal subjects of concern ....................................................................................................... 328E. Suggestions and recommendations .......................................................................................... 333297

Russia1. Preliminary ObservationsThe submission of alternative country information on violence againstwomen to the UN Committee on Economic, Social and Cultural Rightsforms part of the World Organisation Against Torture’s (OMCT) programmeon Violence against Women. One of the aims of the programmeis to integrate a gender perspective into the work of the five “mainstream”human rights treaty monitoring bodies. OMCT’s reports on violenceagainst women examine the effects of gender on the form that humanrights violations take, the circumstances in which these abuses occur, theconsequences of these violations and the availability and accessibility ofremedies.OMCT regrets that the government report submitted by Russia to theCommittee on Economic, Social and Cultural Rights does not addressviolence against women. Furthermore, although it addresses some issueswith respect to women, it broadly points the Committee members to itsreport to the Committee on the Elimination of Discrimination AgainstWomen as a reference document for its policies regarding women, insteadof integrating a gender perspective throughout its report.In line with the overall objectives of OMCT’s programme on Violenceagainst Women, this alternative report will focus on Russia’s internationalobligations in relation to the prevention and eradication of violenceagainst women. After a brief introduction, this report will examine violenceagainst women in the family, in the community, at the hands of Stateagents, specifically in prison and against women human rights defenders,and in the context of armed conflict, namely the war in Chechnya.The Russian Federation emerged from the fall of the Soviet Union in1991. With a population of at least 144,978,573, the country is dividedinto 21 republics. Russia’s population is diverse, claiming 140 differentnationalities and ethnic groups. 1 The Russian Constitution was adopted in1993 and it established a government structure that is divided into threebranches: the executive (President), the judiciary and a bicameral legislature(consisting of the Federal Assembly and the State Duma). The transitionto a market economy in Russia since 1991 has been a difficultprocess and human rights violations have been implicated in this process,in particular, the human rights of women, which will be discussed below.299

Violence Against Women: 10 Reports / Year 2003Russia ratified the International Covenant on Economic, Social andCultural Rights on October 16, 1973 (it inherited this ratification from itspredecessor, the USSR). Additionally, Russia has ratified the followinginternational human rights treaties: the International Covenant on Civiland Political Rights (October 16, 1973), the Convention Against Torture(March 3, 1987), the Convention on the Elimination of All Forms ofDiscrimination Against Women (January 23, 1981), the Convention onthe Rights of the Child (August 17, 1990), and the Convention on theElimination of All Forms of Racial Discrimination (February 4, 1969).Russia has also ratified the Optional Protocol to the InternationalCovenant on Civil and Political Rights, allowing the Human RightsCommittee to hear individual complaints and investigate grave and systematicviolations of human rights. Similarly, Russia has recognized thecompetence of the Committee against Torture (Article 22) and theCommittee on the Elimination of Racial Discrimination (Article 14) tohear individual complaints. OMCT notes that Russia has signed but notyet ratified the Optional Protocol to the Convention on the Elimination ofAll Forms of Discrimination Against Women.On a regional level, Russia has ratified the European Convention onHuman Rights and its Protocols 1, 4, and 7 (May 5, 1998). Importantly,Russia is also a State Party to the European Convention for the Preventionof Torture and Inhuman and Degrading Treatment or Punishment(September 1, 1998).In Russia, international treaties take precedence over national law. This isclearly established by Article 15(4) of the Constitution, which providesthat “if an international treaty of the Russian Federation stipulates otherrules than those stipulated by the law, the rules of the international treatyapply.”1.1 Human Rights in RussiaAlthough many human rights are guaranteed under Russian legislation,the country has a varied human rights record. In particular, violations ofboth economic, social and cultural rights as well as civil and politicalrights have been documented. For example, access to health care and toeducation is becoming increasingly difficult in Russia. Additionally, free-300

Russiadom of expression and the principle of non-discrimination are frequentlydisregarded.The Russian health care system became highly decentralized during theearly 1990s with many aspects of the relationship between regional andfederal levels remaining unclear. Due to limited resources and sometimesoutdated practices, the quality of the health care system remains poor. 2The challenges this system is facing are various: Birth-rates are stillfalling and even though infant mortality is decreasing, the health of youngpeople is threatened by rising rates of substance abuse and the rapidgrowth of HIV/AIDS and other sexually transmitted diseases. The numberof children born to HIV-positive mothers is steadily growing. Theproblem of care for these children becomes more acute as their numbersincrease. Women’s health is jeopardized by relying on abortion as ameans of birth control. 3 Additionally, the number of people infected withtuberculosis is rising significantly. 4A decline in governmental funding and widely varying standards threateneducational quality in Russia. 5 Much of the education sector in Russiawas decentralized under the 1992 Education Act. Under this law, responsibilityfor general education and school finance was entrusted to regional(oblast) and local (rayon) authorities. This rapid decentralization attempt,however, lacked the commensurate transfer of resources and never spelledout the extent of government responsibility. There is genuine concern thatthe emphasis on educational decentralization and diversity is creatinggreater inequities and contributing to a narrowing of educational choicesand opportunities. Today the education system faces an increase in socialstratification, a differentiation among educational institutions, and theemergence of a system of paid education services. All these developmentsare making education less accessible to low-income citizens. 6Freedom of expression has been severely curtailed by government arrestsof alleged spies. These cases are typically characterized by unfair trial tacticsand procedural irregularities. Freedom of expression is also limited byserious constraints on the media, with few independent television stationsand alarming reports of suspicious deaths of journalists. 7 In fact, Russiahas been labeled as the second most dangerous country in the world forjournalists to work in. 8 Freedom of expression was further limited by thepassage of the law on political extremism in Russia in June 2002. This301

law offers no clear definition of “political extremism,” which gives lawenforcement officials a wide berth in interpreting its meaning and arrestingpeople arbitrarily. Solely on the basis of this vague notion of politicalextremism, persons can be jailed for up to five years. 9Racial discrimination is reportedly widespread in Russia. Certain minorities,particularly the Roma, are targeted by the police with discriminatorytreatment in the form of racial profiling. Discrimination against minoritiesis also evident in the denial of access to registration, which in turn affectsaccess to basic services such as health services and education, becausevictims of this type of discrimination are not officially recognized in theRussian territory. Additionally, minorities in Russia experience discriminationin access to public accommodations (such as supermarkets), accessto employment, access to education, and in their portrayal by the media. 10Violence Against Women: 10 Reports / Year 20031.2 ChechnyaThe conflict in Chechnya has been the source of many human rights violationsin Russia. It has received much international attention, althoughaccess to the region has become increasingly restricted. Violations of economic,social and cultural rights are also a serious problem in Chechnya.OMCT conducted a training seminar in Ingushetia, the neighboringRepublic to Chechnya, on economic, social and cultural rights, and collectedmuch information on the situation in that regard. For more detailedinformation on this topic, please see OMCT’s alternative report to thisCommittee “Chechnya: No Means to Live: An Appraisal of Violations ofEconomic, Social and Cultural Rights.”The history of this conflict is complex and will only be treated brieflyhere. As the Soviet Union began opening up in the 1980s, there was moreallowance for the expression of nationalism and ethnic identity. Thus, inNovember 1991, Djokhar Doudaev, a former general in the Soviet armywho was elected president in Chechnya, declared Chechnya to be independentfrom Russia, although Chechnya was never recognized by Russiaor the international community as a sovereign state. In 1992, aConstitution was approved by the Parliament of Chechnya but in 1993,after a dispute with the Parliament, Doudaev installed an authoritarianregime. 11302

RussiaIn December 1994, the Russian army entered Chechnya in an attempt torestore Russian sovereignty over the territory. The war that ensued wasdevastating for Chechnya and it lasted for almost two years due to thestrong resistance by Chechen fighters. On August 31, 1996, the Chechenfighters and the Russian military signed a peace agreement, which becameknown as the Khasa-Vjurt agreement. According to this agreement,Russian troops would withdraw from Chechen territory and the status ofthe Chechen Republic was supposed to be the subject of long-term bilateraltalks.The first war destroyed the cities of Chechnya and was characterized bymassive accounts of torture, ill treatment, disappearances, summary executionsand arbitrary detention. It is estimated that between 50,000 and100,000 civilians died in this war, and the Russian army lost between3,000 and 10,000 soldiers. In the years that followed, very little was doneto rebuild Chechnya.Between 1997 (when the last Russian troops left Chechnya) and October1999, Chechnya enjoyed self rule. Aslan Maskhadov was electedPresident (Doudaev was killed in the first war) and Chechnya wasrenamed “Ichkeria.” However, with a country devastated by war, risingcrime rates and hostage-takings became more and more common. Therewas also a movement against the installed government to instead establisha regime based on Islamic principles. The supporters of this movementenvisioned a republic that re-united Chechnya with Dagestan under oneIslamic state, and they invaded Dagestan from Chechen territory inAugust 1999. The Russians alleged that the Chechen government hadconnections to the group that invaded Dagestan and used this as a pretextto invade Chechnya in October 1999, claiming it was an “anti-terrorismoperation.”The presence of Russian troops in Chechnya continues through the presentand has led to many serious human rights abuses. In particular, therehave been well-documented reports of widespread enforced disappearances,torture, summary executions, ill treatment, arbitrary detention,rape, forced evictions, and many other grave abuses perpetrated byRussian forces. After the September 11 attacks in the United States,Russia has found more justification for its “anti-terrorist operations” andthe abuses continue with impunity.303

Violence Against Women: 10 Reports / Year 2003The Chechen fighters have also violated human rights guarantees. Theirattacks have focused on civilian members of the pro-Moscow governmentin Chechnya, including a bomb of the government headquarters whichkilled 45 people and injured some 80 others.In its most recent visit to Russia, the European Committee for thePrevention of Torture concluded that “there is a continued resort to tortureand other forms of ill-treatment by members of the law enforcement agenciesand federal forces operating in the Chechen Republic, and that actiontaken to bring to justice those responsible has proved largely unproductive.”12The year 2003 has witnessed an attempt by the Russian government to“normalize” the situation in Chechnya. In March 2003, there was a constitutionalreferendum which approved a constitution establishing Chechnyaas an autonomous republic within the Russian Federation, but the legitimacyof the referendum has been seriously doubted. Additionally, inOctober 2003, a presidential poll was held, in which Akhmad Kadyrovwas elected. Similarly however, many doubts were expressed about thispoll as many of the serious opposition candidates were forced out of therace a month before.2. Status of Women in the Russian FederationWomen’s equality is guaranteed in Russian national legislation.Specifically, Article 19 of the Constitution guarantees equal rights andequal opportunities to women and men. Women’s equal rights are alsoprovided for under the following laws of Russia: the Code of LabourLaws, the Law “On the Fundamentals of the RF Public Service,” theFamily Code, and the Criminal Code. 13 Additionally, there are severalnational institutions specifically concerned with women’s rights, such asthe Committee on the Affairs of Women, Family and Youth within theState Duma, the Committee on the Issues of Social Policy, which addresseswomen’s equality under the Council of the Russian Federation, and theCommission on the Problems of Women’s Status, which has been establishedat the federal level in the executive branch.Despite these guarantees of equality and mechanisms concerned withwomen’s rights, implementation is reportedly the biggest obstacle to304

Russiaensuring women’s equality in Russia. No specific mechanism exists forprosecuting violations of the principle of non-discrimination with respectto gender, and any such claims are handled generally by the Ombudsmanof the Russian Federation. 14 Cases of discrimination are very difficult toprove under the current system. Firstly, there is no definition of sex discriminationin Russian legislation. With respect to institutional discrimination,judges often require that victims change their claim from allegingdiscrimination to claiming violation of a specific right or they adviseclaimants to target their allegations against public officials, rather thaninstitutions. These barriers present a potential explanation for the lack ofclaims of institutional discrimination. 15 It is also reported that efforts toinstall affirmative action policies to ensure equality between women andmen are met with much resistance in the legislature and are rarely put intopractice. 16With regard to women in government and politics, their participation levelsare low. Only one woman has been appointed in the current RussianFederation government and the Federal Assembly has only 2 women. 17Women make up only 7.6% of the members of the State Duma and inregional legislatures, they constitute only 10%. 18 Although it does notappear to be widespread, women involved in politics have been threatenedand even subjected to violence on account of their candidacy. Generally,lack of financial resources is deemed the main reason for the lack ofwomen in politics. 19 Reportedly, stereotypes dictate that government legislativework is more appropriate for men than for women. 20With the transition from a communist regime to a market economy,women have suffered especially with regard to work. In the early 1990s,many women were pushed out of work and they made up two-thirds ofthe unemployed. While the level of unemployment has roughly equalizedbetween men and women, women still experience serious discriminationin the labour market. Russia has fallen victim to the larger global phenomenonof the feminization of poverty. Women generally have lower salariesthan men—reportedly between 33% and 50% lower—despite the fact thatmany women are more educated than their male counterparts. Althoughwomen comprise 55% of all public servants, only 1.3% of these womenactually hold positions with decision-making power. 21 Additionally,an opinion poll revealed that 56.3% of Russians believed that in situationsof job shortage, men should be given priority by employers. 22 One305

Violence Against Women: 10 Reports / Year 2003commentator has observed that the prevailing stereotype is that a womancannot be the head of an enterprise, but only the assistant. 23 One Russianlegislator, illustrating this stereotype, has been quoted as saying: “Theman, driven by his hormones, is a real leader and fighter, whereas afemale leader is an exception. Males are top managers – it is in theirnature. The woman is an assistant.” 24Additionally, the prevailing public opinion is that many employers do nothire women because of the extra expenses associated with maternityleave. 25 In connection with this view, it is reported that young womenwithout children are discriminated against in the labour market because ofthe presupposition that they will become pregnant. 26 In some instances,women are reportedly made to sign employment contracts or to agree toconditions that they will not get pregnant. When women do become pregnant,instead of receiving paid maternity leave, they are frequently forcedto resign or they are fired. 27Russian culture and society view women as being primarily responsiblefor their families, in their role as wife and mother. This label makes itvery difficult for women to effectively balance their family and professionallife. The need to give priority to the family as well as women’slower status in society with respect to economic, social and culturalrights, leaves women with less competitiveness in the labour market andenormous obstacles to establishing her career. 28 Additionally, recentsocietal changes have lead to an increased emphasis on the importance ofwomen staying at home to care for children, as opposed to previous generation’sfocus on the importance of outside work for women. This shifthas reportedly led to an increased economic dependence of women ontheir husbands or partners. Even after a couple divorces, women sometimesremain in the home with the ex-husband because they have no economicpossibility of leaving. 29 The potential effects that this situation hason women’s vulnerability to violence will be explored below.3. Violence Against Women in the Family3.1 Domestic ViolenceRussian proverb – “A beating man is a loving man”306

RussiaRussia has no specific legislation addressing domestic violence and hasnot developed a definition of the term. If a woman files a case, it will likelybe dealt with under general assault provisions. For instance, cases ofdomestic violence may be prosecuted under Article 115 of the criminalcode of Russia, which criminalizes “a deliberate infliction of light harm tohealth that caused a short-term health disorder or a minor but persistentloss of the general ability to work.” 30 Where domestic violence hasendured for a long time on a systematic basis, Article 113 may be used,which criminalizes “causing physical or mental suffering by means ofsystematic beating or other violent actions.” 31There was reportedly a project to develop legislation on domestic violencebut it was not approved, and at least one gender expert feels that the currentDuma is not interested in this topic. 32 Her view is confirmed by thestatement of one legislator from the Moscow City Duma who hasexplained that the legislature did not consider it “necessary” to adopt anylegislation on any form of discrimination against women. 33 Specific legislationcriminalizing domestic violence is important, recognizing the specialrelationship and interdependence between the victim and theperpetrator, which gives rise to the necessity for specially designed lawsto combat this form of violence.Domestic violence is reportedly widespread in Russia, and it is generallyconsidered that available statistics do not accurately reflect the magnitudeof this problem. The government report to the Committee on theElimination of Discrimination Against Women acknowledged that asmany as 14,000 women are killed by family members every year. 34Significantly, in 1996, the Internal Affairs Ministry revealed that 80% ofall murders were committed within families. 35 It is also reported that36,000 women are beaten on a daily basis by their husband or partner andthat three quarters of all Russian women suffer from some type of domesticviolence. 36 Another research study revealed that an average of 79% ofmarried women participants were victims of psychological violence, 50%of married women participants were subjected to physical violence, and23% of married women participants were victims of sexual violence. 37Patriarchal values have led to a prevailing opinion that women should bein the home as demonstrated by a recent opinion poll revealing that 78%of all Russians hold such a view. 38 Also, there is an overwhelming307

Violence Against Women: 10 Reports / Year 2003perspective that domestic violence is a private matter, with 43% ofrespondents in an opinion poll expressing this view, and one third ofrespondents recommending that women victims of violence reflect onwhy they “deserved the beating.” Stereotypical images of women perpetuateviolence within the family by blaming the victim for provoking theviolence or creating justifications for the perpetrator’s violence, i.e. “hewas drunk,” “he is going through a difficult time,” “he could not controlhis actions.” 39Significantly, several reports indicate that alcoholism and socio-economicconditions are cited as the main causes of domestic violence. Attributinggender specific violence to such causes neglects the underlying imbalanceof power between men and women in Russia. Worldwide researchon domestic violence has shown that such violence spans across all socioeconomicclasses of persons and that it often stems from power differentialsas well as a need to control a woman’s sexuality. Deeper causes ofdomestic violence must be addressed in order to effectively combat thistype of violence rather than only focusing on surface, exacerbatingcauses of domestic violence such as socio-economic conditions and alcoholism.Treating domestic violence as a private matter and blaming the victimsare also common practices on the part of law enforcement officials. 40Women victims of violence are often blamed for having provoked theattack. In addition, the police rarely take complaints of domestic violenceseriously. If they do arrest the perpetrator, he is often released quickly andsometimes returns to the home even more violent than before. Local officialsoften have no experience in protecting victims from further violenceand thus, the fear of further violence is a real threat to women who filecomplaints. 41 Women may also be at risk of further violence by policeofficials if they go to the police station.Given these attitudes, women are often discouraged from seeking legalhelp from the police or the judicial system. In fact, statistics show that asmany as 40% of women victims of domestic violence do not seek helpfrom law enforcement officials. 42 Police claim that domestic violence isdecreasing since they are receiving fewer complaints, but one women’sNGO has highlighted that this claim is erroneous given the fact thatwomen are hesitant to present themselves to the police. 43308

RussiaAlthough several crisis centers, run by NGOs, provide invaluable supportto women victims of domestic violence, there is a severe shortage of sheltersfor domestic violence victims. It is reported that there are actually noshelters in Moscow for battered women. 44 This makes it very difficult fora woman to leave an abusive relationship because she has no safe place togo to. This, combined with the economic reality that many women do nothave the financial means to move out of the apartment, results in a situationwhere many women remain in the same apartment with violent partners,even in cases where they have technically divorced. One reportindicates that in these circumstances, sometimes “the former husbandactually feels that he is beyond the law since he is not a husband anymore.At that point, the abuse manifests itself with new force.” 45In general, crisis centers and shelters in Russia suffer from a severe shortageof funds. It has also been observed that the personnel of these organizationsare ill-equipped to handle claims of gender based violence andthat trainings are urgently needed to ensure that situations of violence arenot made worse. 463.2 Marital RapeMarital rape is not specifically criminalized in Russia nor is it specificallylegal—it is considered under general rape provisions. Social attitudestowards rape within marriage though seem to indicate that many peopledo not think such a crime exists. In an opinion poll, 70% of respondentsindicated that they did not believe a woman’s consent was necessary forsexual intercourse in marriage. 47 One crisis center has reported that,according to their records, as many as 47% of domestic violence casesresult in pressure to have sex. 48 Like domestic violence, specific legislationcriminalizing marital rape is very important given the relationshipand interdependence between the perpetrator and the victim.3.3 PolygamyAlthough polygamy is formally prohibited by Russian legislation, thismarriage arrangement is still common in some areas of the Federation,particularly in the Caucasus. Support for this practice was demonstratedwhen, in 1999, the President of the Republic of Ingushetia, introduced309

Violence Against Women: 10 Reports / Year 2003legislation that would legalize polygamy in that region. The legislationenjoyed the support of the majority of the population of the IngushetianRepublic, but was not passed into law because it contradicted the federallaw prohibiting polygamy. 49Generally, in polygamous marriages, only the first wife has an officiallyregistered marriage and the rest of the wives are married unofficially,leaving these women without the official governmental protections affordedto persons in the context of marriage.General Recommendation #21 issued by the Committee on theElimination of Discrimination Against Women states that “[p]olygamousmarriage contravenes a woman’s right to equality with men, and can havesuch serious emotional and financial consequences for her and her dependentsthat such marriages ought to be discouraged and prohibited” andasserts that polygamy is a violation of CEDAW.4. Violence Against Women in the Community4.1 RapeRape is defined under Article 313 if the criminal code of Russia as “sexualintercourse with the use of violence or threat of violence against afemale victim or other persons or by taking advantage of the helpless stateof a female victim and shall be punished by imprisonment for 3 to 6years.” The punishment for rape can be increased (4 to 10 years) dependingupon several aggravating factors such as a perpetrator who is a repeatoffender; a rape committed by a group of persons; a rape accompanied bydeath threats, grievous harm or particular cruelty; a rape resulting in venerealdisease; or a rape of a woman who is clearly under age. Factorsresulting in the maximum punishment for rape (8 to 15 years) includeaccidental death, accidental infliction of severe harm; infection of the victimwith HIV or rape of a girl clearly under the age of 14. 50Although the number of reported rape cases has been declining over thepast years (with 9,766 cases being reported in 1999), it is important tonote that rape is notoriously under-reported and that the numbers rarelyreflect reality. 51310

RussiaSimilar to domestic violence, victims of rape face serious obstacles inpressing charges against the perpetrators because of societal views.Stereotypical attitudes often blame the victim for promiscuous behaviorwhich “invites” rape. One victim’s statement serves as an important illustrationof this tendency: “The fact is that some of my friends and I havealso been raped. None of my friends reported to the police but I did and Iregret it to this day. I have never been more humiliated, insulted and condemnedthan back then. It turned out that I was to blame for what hadhappened to me. My mother saved me from suicide whereas the policealmost encouraged me to commit it.” 52Additionally, law enforcement officers reportedly delay in sending rapevictims to the hospital for a medical exam, thus losing essential evidencefor a case against the perpetrator. With respect to medical exams, due tothe poorly written law which does not adequately lay out the obligationsof public officials, as well as serious bureaucratic obstacles, medicalexaminers reportedly do not conduct exams of rape victims unless theyare explicitly responding to questions posed by the judge on the case. Thiscreates grave problems for the victims since the medical evidence willlikely be lost by the time the judge issues such questions or instructions. 53There is no program of protection for rape victims, thus leaving them vulnerableto further contact with the rapist, members of the rapist’s family,or the rapist’s friends. Furthermore, there is no specific department withinthe police department that deals with sex crimes, and there is no programof training available for police officers concerning how to handle rapecases in a sensitive manner. 54Alarmingly, women may face further violence when they go to the policestation. In one case, it is reported that two women went to the police stationto report the rape of one of the women. Both women were locked upand raped in the police station by police officers. It is reported that thiscase is not out of the ordinary. 554.2 TraffickingTrafficking is another serious problem in the Russian Federation, which isboth a country of origin, transit and destination for trafficking victims.Since the fall of the Soviet Union, women in the former Soviet countries311

Violence Against Women: 10 Reports / Year 2003have been particularly vulnerable to trafficking for a combination of reasons,including poverty, discrimination, and violence, which implicatetheir economic, social and cultural rights.Trafficking in human beings has become a serious global concern.International criminal groups, whose activities often include other formsof illicit trade such as smuggling of drugs and arms, often control traffickingin persons as well. In addition to abusing human rights, and violatinglabour and migration laws, trafficking in persons is also a problem ofnational and international security.Many women fall prey to trafficking schemes because of the adverselabour market conditions for women in Russia. It has been reported thatwomen have fewer work opportunities than men. Thus, the level of educationalone is reportedly not an effective indicator of who will become atrafficking victim as women with higher educations are also susceptible tothese schemes. 56Additionally, visa restrictions in foreign countries make it exceedinglydifficult for Russian women to find work abroad, given that they oftenseek low-skill employment. In these circumstances, many Russian womenseek help from “employment agencies,” which provide false promises oflegitimate jobs abroad. When the women arrive in the foreign country,their passports and other papers are confiscated and they are often forcedinto prostitution. 57One opinion poll has revealed that, despite the fact that 85% of womenconsidered trafficking to be a problem, 65.5% were still interested in leavingRussia to work abroad. 58 The Angel Coalition, a network of NGOsfighting against trafficking in the region, has documented 350 cases oftrafficking in Russia, but they suspect that the number of victims could beas high as 5,000 per year. 59Women from the Newly Independent States are reportedly traffickedthrough Russia frequently in transit to third countries. 60 Trafficking victimsare also reportedly working within Russia, having been traffickedfrom countries such as Moldova, Uzbekistan, Tajikistan, Kazakstan,Ukraine and Belarus. 61 Within Russia, traffickers reportedly have connectionswith local police, making it especially complicated for traffickingvictims to escape from the hold of their captors. 62312

RussiaIn February 2003, the State Duma proposed a draft law that would outlawtrafficking in persons and slavery. However, this legislation is still beingdeveloped and is not yet in force.Furthermore, lack of resources, widespread corruption, and lack of understandingof this crime among the police, mean that cases are rarely investigatedeffectively. Victims who are returned to Russia are reportedlyscared to press charges against the employment agencies who arrangedthe trafficking because of the power of organized crime in Russia and alack of faith in law enforcement institutions. 63There is a lack of shelters (with only 5 across the entire RussianFederation) and there are no support services for trafficking victims whohave been returned to Russia. The lack of shelters is a serious problembecause, when trafficking victims are deported back to Russia, they arefrequently sent to the “nearest point,” usually Moscow. With no supportservices, the victims are forces to continue working in prostitution inorder to have enough money to return home. Fortunately, an increase inthe number of shelters is foreseen over the next year. 644.3 Sexual HarassmentThere is no law specifically prohibiting sexual harassment in Russia.Sexual harassment of women in the workplace appears to be commonplace.One research project documented cases of sexual harassment insmall businesses, where many women work. The cases indicate thatwomen are often harassed but they rarely make complaints being resignedto “accepting the rules of the game.” The typical case involves managerswho propose relationship with female workers. 65 Another report indicatesthat when a woman is hired, she is told that her employment is conditionedon her willingness to subject herself to the proposals of her boss –this condition is implicitly stated in requests, for example, that she “go tothe sauna” with the boss and the clients. 66 Although these forms of sexualharassment are openly directed against women, women rarely complainfor fear of losing their jobs.313

Violence Against Women: 10 Reports / Year 20035. Violence Against Women Perpetrated by State Agents5.1 Violence against Women in PrisonWomen constitute 5.6% of the prison population in Russia, with about58,000 women prisoners. 67 It is reported that women criminals often findthemselves in jail as a result of violence and other disharmony in the family,with more and more penal colonies reporting inmates who have killedtheir husbands, fathers, etc. 68Reports of torture and ill treatment of women prisoners in Russia are particularlyconcerning to OMCT. This seems problematic specifically withregard to women from the Southern Republics of Russia in the Caucasus.Sexual harassment is one type of violence reportedly taking place inwomen’s prisons in Russia but it is often difficult for the women prisonersto prove the necessary facts in order to file formal charges. 69 Additionally,most women’s prisons are overcrowded and some are reported to be filledat twice their capacity. 70There are only 40 prisons for women in all of Russia, meaning that one inevery two women convicted of a crime must be transferred to a differentregion. The decision about where a woman will serve her prison sentenceis made based on convenience to the government, rather than consideringthe needs of the woman and her family. The time it takes to transfer prisonersis not directly related to the actual distance as the prisoners frequentlymust pass through “transit” prisons, meaning that a journey thatshould only take 2 days can take as much as 2 months. The conditions inthe transit prisons are reportedly horrendous—with unsanitary living conditions,exposure to contagious diseases, overcrowding, and lack of accessto medical help. Interviews conducted in one prison colony revealed thatsome of the inmates had been deprived of food while they were beingtransferred. Others had been beaten, either by the guards or by otherinmates. 71A study of six women’s prisons in Russia by the Center for Assistance toCriminal Justice Reform in 1999 found the following:“The core problem of accommodation of women in Russia’spenitentiary system is that the conditions of serving the sen-314

Russiatence that were shaped in the Soviet period reflect neitherpsychological nor physiological features inherent in women,i.e., women are kept as men or, more precisely, as certainaveraged-out human beings without regard to sexual, agerelated,or other characteristics.” 72This problem is evidenced by the failure of the Russian government toissue hygienic materials for women who are menstruating. Thus, it hasbeen reported that women try to find other ways to meet their hygienicneeds, such as using technological cotton found at factories, clothes ormattresses as tampons. Medical experts note that these homemade solutionscan cause serious problems for women’s health. 735.2 Violence Against Women Human Rights DefendersWomen human rights activists have also been subject to harassment inRussia. One example is Soldiers’ Mothers of St. Petersburg, who reporton the conditions for soldiers in the Russian army and also teach soldiershow to observe the laws and Constitution of Russia. This organization hasbeen harassed through measures to close down their offices and allegationsthat their activities do not correspond with their “status.” 74 Thesegovernment actions obstruct the important work of this organization.Also, in Chechnya, Malika Oumzhayeva, the ex-administrative head ofthe Alkhan-Kala, Grozny district, was shot to death by Russian soldierson the night of November 29, 2002. It has been reported that she waskilled shortly after meeting with the delegation from the EuropeanCommittee for the Prevention of Torture. Human rights organizationshave observed that Ms. Oumzhayeva defended the interests and rights ofthe local people in her district and allege that she was killed precisely forthese activities. 75Another woman activist was killed in May 2003 along with 4 members ofher family in the village of Kalinovskoe, district of Naourski. ZouraBitieva was well known for her anti-war activities throughout the first andsecond war in Chechnya, having participated in many demonstrationsagainst the war and having brought complaints before the European Courtof Human Rights concerning human rights violations by the Russian military.Because of her activities, her family had received multiple threats315

Violence Against Women: 10 Reports / Year 2003and suffered harassment by the authorities. According to reports, on thenight of May 20, 2003, Ms. Bitieva, her husband, her youngest son andher brother were all shot in their home by fifteen men, four of whom werewearing masks. 766. Violence Against Women in ChechnyaThe conflict in Chechnya has had an effect on women as well as men.One report alleges that women constitute at least 10 % of the total numberof civilians killed in the Chechen Republic in 2002. 77 It is important tonote that men are primary targets in the context of the conflict inChechnya, being subjected to arbitrary detention, torture and enforceddisappearances in larger numbers than women. However, not only arewomen similarly subjected to these violations, but women have also experiencedthe wars in Chechnya in different ways than men. Widows makeup a large part of the Chechen population and, as widows, many womenhave had to assume new roles in the family and community. In addition tothis reality, women face serious obstacles in finding disappeared relatives,women are subjected to sex-specific violence such as rape, women aretargeted by the military on account of their relationships with combatants,and increased visibility of women suicide bombers has led to a governmentpolicy of searching all Chechen women in increasingly invasiveways.In 1997, before the start of the second war, the official number of widowsin the Chechen Republic was 3000. 78 It is now suspected that that numberis much higher, and higher than indicated by official estimates. The highnumber of widows in Chechnya has changed the role of women inChechen society with women now being forced to assume the entireresponsibility of supporting and caring for the family. Assuming theseincreased responsibilities in the family has serious consequences for theeconomic and social situation of these widows.Disappearances are widespread in Chechnya, the victims of which aremostly men. At least three protest rallies have been organized, mostly bywomen, in a six month period with the protestors demanding to know thewhereabouts of their disappeared relatives. These protests took place inMarch 2003 in Grozny, for two days from June 28-30 just outside ofGrozny and on August 19, 2003 in Grozny. When women file cases to316

Russiafind their disappeared relatives, they face enormous obstacles in receivingany information as the various government institutions merely pass theblame between each other, with no one actually conducting a transparentinvestigation. Frequently, investigations are suspended with the authoritiesclaiming that the perpetrators were unidentifiable. Although the newPenal Code in Russia allows for the prosecution of authorities for failingto properly investigate a case, the necessary evidence to file such a case isoften “classified,” thus leaving no real possibility of holding prosecutorsaccountable for their inadequacy. 79 In some cases, when the body of theirrelative is found, women are forced to pay in order to get the body backfrom the authorities. 80The psychological trauma and hardships suffered by women on accountof the fact that their male relatives have disappeared cannot be underestimated.The Secretary General’s report on Women, Peace and Security recognizedthat “the ‘disappearance’ of male relatives affects women’s statusin their societies and traumatizes women who cannot find closure as longas they are hoping for the return of their relatives.” 81When a woman’s husband is disappeared or killed, she receives no publicsupport in the form of pensions. Children are entitled to an allocationwhen their father is killed, and oftentimes the entire family becomesdependent on this money, but such allocation is dependent on the presenceof a death certificate. In cases where the husband is disappeared, familiesare often reluctant to apply for a death certificate because it gives thepolice a justification to cease the search for their relative.Interviews conducted, as well as numerous reports, reveal that Russiantroops have been responsible for the rapes of many women during thecourse of the two conflicts in Chechnya. Women are particularly vulnerableto such sexual violence during “cleansing” operations of privatehomes. As many men are no longer in the homes (having fled the perpetualdangers of arbitrary arrest, detention and torture, as well as to join thecombatants in the mountains), women are often alone in the home whensoldiers enter. Cases have also been reported of women being raped infront of their husbands and other male relatives or women being rapedwhile being forced to watch their relatives being attacked in other ways.In addition, women are also vulnerable to rape at checkpoints and indetention centers.317

Violence Against Women: 10 Reports / Year 2003The case of Iman, which occurred on July 27, 2002, is illustrative of thehorrors that women face. On July 26, 2002, Iman’s husband had helpedhis neighbor to repair a car, which, unbeknownst to the husband, belongedto a Chechen fighter. The next day, Russian soldiers entered the home ofIman and her husband and proceeded to torture Iman’s husband as well asher 11 month old daughter, and then took her husband away. On the followingday, the soldiers returned to Iman’s house.“They took Iman into the bedroom, demanding that she confessto being a Chechen fighter. They pinned her to the wall,cutting off her breath. They brutally kicked and beat herwith a kalashnikov butt. They tried to rape her, but she putup such a fight that they pulled out a syringe filledwith green liquid, which they said would kill her, and theninjected her with it. Iman felt a sharp burning sensationand an intense pain before she lost consciousness. Sheawoke naked, lying on the bed, completely numb and as ifparalysed. The soldiers left after repeating that it wouldmake her suffer a long while, and that if she ever spokeabout what happened, they would kill both her and herdaughter.” 82It is extremely difficult for women to report these crimes given culturalobstacles which dissuade them from admitting that they have beeninvolved in any sexual activity, forced or not. Such an admission, undertraditional viewpoints, makes a woman unmarriageable, or if she isalready married, such an admission may make her vulnerable to divorceor to further violence. One interviewee acknowledged that the subject ofviolence against women, including rape, is a completely taboo subject andit is impossible for women to talk about it. 83 As another Chechen womanhas explained:“If they [raped women] come home, they would be better offshooting themselves. If anyone laid a hand on them they’dbe written off for good here in Chechnya. It’s a kind of law.A sullied daughter is worse than a dead one to her father.It’s a terrible disgrace. She’ll never get married and no onewill say a kind word to her, even though it’s not her ownfault she was dishonoured.” 84318

RussiaFurthermore, when women attempt to file complaints about these crimes,the police reportedly will not investigate the case. 85In one case, reported to OMCT during the seminar and highly covered bythe local and international media, a Russian colonel, Yuri D. Budanov,was charged with murdering a 18 year old Chechen girl, KhedaKungaeva. The evidence of the case showed that Ms. Kungaeva had alsobeen raped before being strangled to death. Budanov was arrested inMarch 2000 (two days after the murder) and he admitted murderingKungaeva but denied having raped her. The trial began in February 2001with Budanov being charged only with murder and not with rape. Thetrial was postponed several times while Budanov underwent psychiatricexaminations, eventually resulting in a psychiatric institution claimingthat he was insane at the time of the murder and thus could not be heldcriminally accountable for his actions. As such, he has been transferred toa psychiatric institution rather than a prison. 86 No one has been chargedfor the rape of Kungaeva.Reports from the Russian-Chechen Friendship Society also show thatmany women, similar to men, have been disappeared, arbitrarily detained,tortured and summarily executed in Chechnya. For example, it is reportedthat on the night of August 1, 2003 in Achkhoy-Martan District, federalforces abducted Luisa Katsaeva. Until now, the whereabouts of Ms.Katsaeva remain unknown. 87 Other women who had disappeared havebeen found among the dead bodies in mass graves. One example is threewomen who were arrested in Grozny on June 3, 2000—Nura LuluevayaSaidalievna, and her two cousins Raisa and Markha Gakaev. Reports indicatethat these three women were detained by men in camouflage uniformsalong with a man, Zavala Tazurkaev, who had tried to help themwhen he heard their screaming. The bodies of all four detainees wereidentified in a mass grave found in February 2001 near Khankala. 88Testimonies collected indicate that it is usually the most beautiful womenand girls who disappear.In another case, the wife of Abubakar Amiroff disappearedand was eventually killed in 2000 by Russian police. OnJanuary 11, 2000, she had gone to Grozny to collect somechildren’s clothes. She was nine months pregnant and shewas detained at a checkpoint on her way to Grozny. Her319

Violence Against Women: 10 Reports / Year 2003husband searched for her for four months, and then she wasfound in the basement of small house in Grozny, where shehad been killed by three bullets, one in the back of her headand two in her chest. There was also a deep cut runningacross her abdomen. All efforts by her husband to investigateand find justice on this case have been thwarted bythreats and violence against him. 89Additionally, in recent months, in an effort to find female suicidebombers, women are at greater risk of being detained and thus, potentiallyvulnerable to violence while in detention. After the suicide bombings inTushino, allegedly committed by women terrorists, the governmentreportedly issued Order No. 12/309 on July 9, 2003, known as operation“Fatima,” whereby police were instructed to detain all women wearing thetraditional Muslim headscarves. 90 As part of this new operation, accordingto testimonies, women are strip searched at checkpoints. Althoughwomen guards are supposed to conduct these searches, oftentimes maleguards are present. People from Chechnya are outraged by this practicebecause, in their culture, making a woman undress is a severe form ofhumiliation. With regard to searches, it is also reported that pregnantwomen are vulnerable to being searched at checkpoints because the soldierswant to verify that the women are actually pregnant and not hidingexplosives. 91One case resulting from operation “Fatima” is the disappearance ofAyshat Saydulayeva. According to reports, Ms. Saydulayeva was arrestedin her home village in the Urus-Martan District, being accused of havingcontacts with guerrillas based on the allegation that she had photos of herselfwith members of the Chechen resistance. She has not been seen sinceher arrest and her whereabouts are unknown. 92 Another recent case concerneda woman who had received a letter from a friend, who was one ofthe women who participated in the Moscow hostage taking, previous tothat attack. According to the report, members of the FSB arrested therecipient of the letter and detained her for four days. When she wasreleased, they warned her that if a terrorist attack happens, she will be thefirst suspect. 93Women are also targeted because of their relationship to fighters on eitherside of the conflict. For instance, the body of Mrs. Tsagareva, sister of a320

RussiaChechen commander, Mr. Magomed Tsagarev, was found in February2003 in a town near Urus-Martan. Local residents reported that a cardrove into the forest, an explosion was heard and then the car drove awayin an unknown direction—the body was found at the scene of the explosion.94 On another occasion, the wife and daughter of a policeman whoworked for the Chechen Ministry of Interior were killed. A commander ofa Chechen rebel group claimed responsibility for this murder, as revengefor the policeman’s collaboration with Russian forces. 95 It has also beenreported that women’s links to fighters may hinder their access to publicsupport. For example, one testimony asserted that a woman was unable toclaim the full pension for her children because the authorities labelled herdead husband as a fighter. 967. Conclusions and RecommendationsAlthough Russia has enacted many laws and established several mechanismswhich purport to guarantee equal rights between women and men,discrimination against women is still widespread in this country.Frequently, such discrimination manifests itself as violence.With respect to discrimination, the Russian Federation should make moreefforts to implement existing laws guaranteeing equality. Furthermore, adefinition of sex discrimination should be developed and a mechanismshould be established to pursue claims of sex discrimination against eitherindividuals or institutions. Discrimination against women in Russiaseverely hinders women’s access to employment and politics, thus OMCTrecommends that the Russian Federation consider instituting affirmativeaction policies to guarantee women’s equal opportunities in these fields.Additionally, educational programs should aim to combat negative stereotypesthat make women vulnerable to discrimination and/or violence.OMCT is gravely concerned about the widespread nature of domestic violencein Russia and urges the government to enact legislation specificallycriminalizing such violence. OMCT would recommend that effectivemeasures be taken with respect to the enactment of legislation on domesticviolence along the lines of the guidelines submitted by the UnitedNations Special Rapporteur on violence against women to the fifty-secondsession of the United Nations Commission on Human Rights (U.N. doc.321

Violence Against Women: 10 Reports / Year 2003E/CN/.4/1996/53, Add.2). The measures that the government shouldenvisage incorporating within domestic violence legislation shouldinclude; the establishment of a system for the enforcement of ex-parterestraining and protective orders that would have the effect of ensuringthat the perpetrator could not approach the victim or other witnesses andthat the perpetrator be obliged to vacate the family home; as well as provisionson the rights of victims to receive appropriate legal, medical andother assistance including alternative shelter and reparations.It is urgent that police and judiciary officials receive appropriate gendersensitivetraining for addressing cases of domestic violence. The governmentshould also institute awareness raising campaigns to take thisviolence out of the private sphere and place it in the public eye.OMCT further recommends that the government explicitly criminalizemarital rape.OMCT is concerned that despite the legal ban on polygamy, the practicecontinues in some areas of Russia. Efforts should be made to work withwomen from the areas where polygamy is common in order to raiseawareness about the dangers it presents for women and ensure that all citizensare aware that it is not legal.OMCT is deeply troubled that rape victims are continually blamed forhaving provoked the violence they suffered and insists that police andjudiciary officials receive training on how to respond to rape cases. Incases where such officials subject victims of violence to further violence,it is essential, as with all rape cases, that the case is investigated, prosecuted,and punished with due diligence. Also, protection programs should bedeveloped for women victims of rape who file complaints so that they donot suffer further violence at the hands of the rapist or other persons.Trafficking is an enormous problem in Russia. OMCT commends Russiafor taking steps to develop new legislation against trafficking and recommendsthat in the drafting of such legislation, protection of the victim andprosecution of the trafficker are emphasized. Additionally, recognizingthat women’s vulnerability to trafficking stems from their lower socioeconomicstatus, it is imperative that the government make efforts toaddress women’s lack of job opportunities and poverty. It is urgent thatmore shelters and support centers be set up for victims of trafficking who322

Russiahave been deported back to Russia in order to rehabilitate such victimsand offer protection in cases where women decide to file complaints.The common nature of sexual harassment in Russia is deeply concerningto OMCT. Reports that women must agree to conditions which demandthem to submit to the sexual desires of their superiors are clear violationsof women’s rights. A strong law forbidding sexual harassment and establishinga cause of action for such acts is imperatively needed.The situation of women prisoners is also troubling. OMCT insists on theobligation of the Russian Federation to investigate, prosecute and punishall cases of ill treatment and torture. Also, the detention conditions inRussia, which are horrendous, must be improved.Government harassment and violence against women human rightsdefenders is extremely problematic in Russia and OMCT urges the governmentto cease such activities and guarantee the full enjoyment of allhuman rights to these persons as guaranteed in the Declaration on theRight and Responsibility of Individuals, Groups and Organs of Society toPromote and Protect Universally Recognized Human Rights andFundamental Freedoms, UN Doc. A/RES/53/144.Women in Chechnya are victims of multiple forms of violence, often perpetratedby Russian state agents. OMCT insists on the need to guaranteeaccess to justice for all citizens of Chechnya, particularly women searchingfor disappeared relatives. Additionally, appropriate social servicesshould be given to widows of the two wars in Chechnya. OMCT calls onthe Russian government to ensure that all cases of violence againstwomen perpetrated by Russian forces, including rape, torture, ill treatment,and disappearances be investigated with due diligence and the perpetratorsbe brought before an impartial and fair tribunal. With the newpolicy established by Operation Fatima, OMCT is extremely disturbed bythe practice of male guards strip searching females and insists that onlyfemale guards carry out this function. Also, the government must guaranteethat when women are detained under this operation it is for a legitimatereason and that women are not subjected to further violence while indetention.Finally, OMCT would insist upon the need for the Government to fullyimplement all of the provisions of the Convention for the Elimination of323

Violence Against Women: 10 Reports / Year 2003All Forms of Discrimination Against Women, the Beijing Rules andPlatform for Action and the Declaration on the Elimination of ViolenceAgainst Women as these instruments provide detailed protection forwomen against violence in the family, in the community and at the handsof State officials.1 Fourth Periodic Report submitted by the Russian Federation to the Committee onEconomic, Social and Cultural Rights, UN Doc. E/C.12/4/Add.10, (November2001), p. 4.2 World Bank, Press Release, World Bank Supports Russian Health Sector ReformsWith $30 Million Loan, available athttp://www.worldbank.org.ru/ECA/Russia.nsf/0/EECE760446AF5DB7C3256D0B00273C59.3 UNICEF, Russian Federation, available athttp://www.unicef.org/infobycountry/russia.html.4 World Bank, available at: www.worldbank.org.5 UNICEF, Russian Federation, Ibid.6 Reforming Russia’s Education System by Abdur Chowdhury and Inna Verbinaavailable at: http://www.worldbank.org/transitionnewsletter/janfebmar03/pg43.htm.7 International Helsinki Federation for Human Rights (IHF-HR), Annual Report:Russia 2003, p. 2-5 (events of 2002).8 Canadian Journalists for Free Expression, Casualties of Truth: 46 Violent Deathsin 2002, available at http://www.cjfe.org/specials/attacks02/attacks02.doc.9 The Observatory for the Protection of Human Rights Defenders, OMCT andFIDH, Human Rights Defenders on the Front Line, Annual Report 2002, p. 169.10 Open Society Institute, Combating Discrimination in Russia: Strategies forLawyers and NGOs, Report of a Workshop held in Moscow, 27-29 January 2003.11 Fédération Internationale des Ligues des Droits de l’Homme, Tchétchénie: crimescontre l’humanité – un an de crimes impunis (Octobre 2000).12 European Committee for the Prevention of Torture, Press Release, Chechnya:Council of Europe Anti-Torture Committee makes a public statement (July 10,2003).13 International Helsinki Federation for Human Rights (IHF-HR), Women 2000:Russia, p. 372, available at www.ihf-hr.org; see also Moscow Helsinki Group(MHG), Discrimination Against Women in Contemporary Russia (2003).14 IHF-HR, Women 2000: Russia, Ibid., p. 372.15 Ibid., p. 372-73.16 MHG, Discrimination Against Women, Ibid. (citing example of law “On BasicGuarantees of Electoral Rights and the Right of Citizens of the RussianFederation to Participate in a Referendum.,” where legislators refused to include324

Russiain the law a provision requiring that candidate lists not have more than 70% oftheir candidates as persons of the same sex).17 Consortium of Women’s Nongovernmental Associations (E. Yershova), ShadowReport to Committee on the Elimination of Discrimination Against Women,Russian Federation (2002).18 MHG, Shadow Report on Russia to the Human Rights Committee (2002).19 Moscow Helsinki Group (MHG), Human Rights in the Russian Regions, 2002,p. 165-66.20 MHG, Shadow Report, Ibid.21 Consortium of Women’s Nongovernmental Associations (E. Yershova), ShadowReport, Ibid.22 IHF-HR, Women 2000: Russia, Ibid., p. 374.23 Interview at Stop Sexism, October 23, 2003, Moscow, Russia.24 MHG, Human Rights in the Russian Regions, 2002, Ibid., p. 167-68.25 Consortium of Women’s Nongovernmental Associations (E. Yershova), ShadowReport , Ibid.26 HF-HR, Women 2000: Russia, Ibid., p. 373-74.27 MHG, Human Rights in the Russian Regions, 2002, Ibid., p. 175, 200.28 IHF-HR, Women 2000: Russia, Ibid., p. 374.29 Interview at Yaroslavna, October 24, 2003, Moscow, Russia.30 HF-HR, Women 2000: Russia, Ibid., p. 381.31 Ibid.32 Interview with Association of Crisis Centers, October 24, 2003, Moscow, Russia.33 MHG, Human Rights in the Russian Regions, 2002, Ibid., p. 160.34 Russia government report to 26th session of CEDAW (2002), UN Doc.CEDAW/C/USR/5 (March 1999). It is important to note that this statistic is relativelyout of date and that the number may be quite different at this time.35 Elena Schitova, Russia’s Hidden Shame, The Russia Journal, (27 March 2003)available at http://therussiajournal.com.36 Megan Merrill, NGOs: 36,000 Women Beaten Daily, The Moscow Times (May20, 2003).37 Albina Pashina & Ludmilla Budnik, Violence against women problem in Russia:movement of crisis centers, p. 2 (forthcoming article).38 Sylvie Briand, Russian Women Die from Domestic Violence Every 40 Minutes,Agence France Presse (March 8, 2003).39 Merrill, Ibid.40 CEDAW Concluding Observations, UN Doc. CEDAW/C/2002/I/CRP.3/Add.3,para. 36 (The CEDAW Committee expressed concern “at the prevalent tendency,including by law enforcement officials, to view such violence not as a crime, butas a private matter between spouses.”)41 Interview with Yaroslavna, October 24, 2003, Moscow, Russia.42 IHF-HR, Women 2000: Russia, Ibid., p. 382.325

Violence Against Women: 10 Reports / Year 200343 Interview with Yaroslavna, October 24, 2003, Moscow, Russia.44 IHF-HR, Women 2000: Russia, Ibid., p. 382. Confirmed in interviews with variouscrisis centers in Moscow.45 Sophie Lambroschini, Russia: Domestic Violence Persists, Radio Free Europe(March 7, 2001).46 Interview with Yaroslavna, October 24, 2003, Moscow, Russia.47 Merrill, Ibid.48 IHF-HR, Women 2000: Russia, Ibid., p. 383.49 Ibid. p. 378.50 Ibid., p. 382.51 Ibid.52 MHG, Human Rights in the Russian Regions, 2002, Ibid., p. 214.53 Interview with Syostri, October 24, 2003, Moscow, Russia.54 IHF-HR, Women 2000: Russia, Ibid., p. 382.55 Interview with Yaroslavna, October 24, 2003, Moscow, Russia.56 Interview with the Angel Coalition, October 23, 2003, Moscow, Russia.57 Galina Stolyarova, Russia: With No Jobs at Home, Women Fall Victim toTrafficking, Radio Free Europe (May 23, 2001); Anti-Slavery International,Trafficking in Russia, available at www.antislavery.org/homepage/antislavery/traffickingrussia.htm; International Helsinki Federation for Human Rights, AForm of Slavery: Trafficking in Women in OSCE Member States, p. 51 (June2000).58 Anastasia Denissova, Crisis Center for Women “OBEREG”, Krasnodar, Russia,Opinion Poll on Trafficking.59 Interview with the Angel Coalition, October 23, 2003, Moscow, Russia.60 IHF-HR, A Form of Slavery: Trafficking in Women in OSCE Member States,Ibid., p. 51.61 Stolyarova, Ibid.; Anti-Slavery International, Ibid.62 Galina Stolyarova, Ibid.63 IHF-HR, A Form of Slavery: Trafficking in Women in OSCE Member States,Ibid., p. 52.64 Interview with the Angel Coalition, October 23, 2003, Moscow, Russia.65 E.A. Ballaeva & E.V. Mahkova, Socio-Economic and Legal Status of WomenEmployees at Small Enterprises, p. 10-11 (1999), available at http://femina.chelny.ru/eng/issled06.htm.66 Interview with Yaroslavna, October 24, 2003, Moscow, Russia.67 Elke Albrecht & Véronique Guyard, Prisons de femmes en Europe p. 180 (2001).68 Lyudmila Alpern, Women and the System of Criminal Justice in Russia 2000-2002, in Situation of Prisoners in Contemporary Russia (Moscow HelsinkiGroup), p. 224-25.69 Albrecht & Guyard, Ibid., p. 182-83.70 Alpern, Ibid., in Situation of Prisoners in Contemporary Russia (Moscow HelsinkiGroup), p. 229.326

Russia71 Ibid., p. 226-27.72 Quoted in Alpern, Ibid., p. 229.73 Alpern, Ibid., in Situation of Prisoners in Contemporary Russia (Moscow HelsinkiGroup), p. 229.74 Observatory for the Protection of Human Rights Defenders, Joint Programme ofOMCT and FIDH, Russia: New attacks on human rights defenders (September2003), available at www.omct.org.75 Case reported in OMCT/Echo of War training seminar, Ingushetia, October 2003.76 Sécours Catholique, Report of Mission, 19-31 May 2003, p. 5-6.77 MHG, Human Rights in the Russian Regions, Ibid., p. 236.78 Reported in OMCT/Echo of War training seminar, Ingushetia, October 2003.79 Secours Catholique, Ibid.80 FIACAT, Mission Report, August 2002, pp 8 and 11.81 Women, Peace and Security, Study submitted by the Secretary-General pursuantto Security Council Resolution 1325 (2000), p. 29 (2002), available athttp://www.un.org/womenwatch/daw/public/eWPS.pdf.82 FIACAT, Ibid., p. 583 Reported in OMCT/Echo of War training seminar, Ingushetia, October 2003.84 Petra Procházková, Aluminum Queen, April 7, 2002, republished by PragueWatchdog, available at http://www.watchdog.cz.85 Human Rights Watch, Russia: Investigate Sexual Violence by Troops inChechnya, April 10, 2002.86 IHF-HR, Annual Report: Russia 2003; Human Rights Watch, Russian Federation:Serious Violations of Women’s Human Rights in Chechnya, January 2002.87 The Russian-Chechen Friendship Society, Press Release # 494, August 5, 2003.88 Memorial, Persons Detained in Chechnya by Military and Internal Affairs -Agents Become Victims of Summary Executions, available athttp://www.memo.ru/eng/memhrc/texts/khankala.html.89 Case reported in OMCT/Echo of War training seminar, Ingushetia, October 2003.90 Nadezhda Kevorkova, Irrespective of Status and Age: Operation Fatima isMounted in Moscow, in Moscow Gazeta, July 23, 2003, p. 4.91 Médecins du Monde, Report Chechnya, July 2002, p. 26.92 Prague Watchdog, Police Operation “Fatima” Brings First “Results, July 19,2003, available at www.watchdog.cz.93 Reported by Echo of War, Ingushetia, October 16, 2003.94 The Russian-Chechen Friendship Society, Press Release # 366, February 28, 2003.95 Prague Watchdog, Family of Chechen Policeman Killed in Grozny, March 23,2002, available at www.watchdog.cz.96 Case reported in OMCT/Echo of War training seminar, Ingushetia, October 2003.327

Violence Against Women: 10 Reports / Year 2003Committee on Economic, Socialand Cultural RightsTHIRTY-FIRST SESSION – 10-28 NOVEMBER 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLES 16 AND 17 OF THE COVENANTCONCLUDING OBSERVATIONS OF THE COMMITTEE ON ECONOMIC, SOCIALAND CULTURAL RIGHTS: RUSSIAN FEDERATION1. The Committee on Economic, Social and Cultural Rights consideredthe fourth periodic report of the Russian Federation on the implementationof the International Covenant on Economic, Social and CulturalRights (see E/C.12/4/Add.10) at its 41st to 43rd meetings, held on 17and 18 November 2003 (see E/C.12/2003/SR.41-43), and adopted, atits 56th meeting, held on 28 November 2003 (seeE/C.12/2003/SR.56), the following concluding observations.A. Introduction2. The Committee welcomes the submission of the fourth periodicreport of the State party, which was prepared in general conformitywith the Committee's guidelines. It also appreciates the comprehensivewritten replies to the list of issues as well as the additional writteninformation provided during the dialogue.3. The Committee welcomes the frank and constructive dialogue withthe high-level delegation of the State party.328

RussiaB. Positive aspects4. The Committee notes with appreciation that the Constitutional Courtcontinues to apply the Covenant in its rulings.5. The Committee welcomes the State party's commentary on an optionalprotocol to the Covenant in which it restates its support for a complaintsprocedure.6. The Committee welcomes the adoption of the Federal Act entitled"Political Parties" which contains provisions aiming at enhancingwomen's participation in political life.7. The Committee welcomes the new Labour Code of 2001, which introducesfurther protection against forced labour and discrimination inthe field of labour and employment.8. The Committee welcomes the State party's ratification on 25 March2003 of the International Labour Organization Convention No. 182concerning the Prohibition and Immediate Action for the Eliminationof the Worst Forms of Child Labour.C. Factors and difficulties impeding the implementation ofthe Covenant9. The Committee notes the absence of any significant factors or difficultiespreventing the effective implementation of the Covenant in theRussian Federation.D. Principal subjects of concern10. The Committee is deeply concerned about the poor living conditionsin the Republic of Chechnya and notes with regret that sufficientinformation was not provided on this problem in the State party'sreport. While acknowledging the difficulties posed by the ongoingmilitary operations, the Committee is concerned about the problemsfaced by people in the Republic of Chechnya with regard to the provisionof basic services, including health care and education.329

Violence Against Women: 10 Reports / Year 200311. The Committee is concerned about the precarious situation of indigenouscommunities in the State party, affecting their right to self-determinationunder article 1 of the Covenant. The Committee notes thatthe Law of 2001 On Territories of Traditional Nature Use ofIndigenous Numerically Small Peoples of the North, Siberia and theFar East of the Russian Federation, which provides for the demarcationof indigenous territories and protection of indigenous land rights,has still not been implemented.12. The Committee is concerned about reports of cases where the lack ofregistration of place of residence and other identity documents inpractice places limitations on the enjoyment of rights, including work,social security, health services and education. The Committee is alsoconcerned about reports that some groups of people, including thehomeless and the Roma, face particular difficulties in obtaining personalidentification documents, including registration of residence.13. The Committee notes the statement of the State party's delegation thatany former citizen of the Soviet Union living in the country canexchange their old Soviet passports for new Russian Federation oneswithout any difficulty. However, the Committee is concerned aboutreports that registration and recognition of citizenship have beendenied to some groups, particularly the Mesketians living inKrasnodar Krai.14. The Committee remains concerned about gender inequality in theState party, particularly with regard to discrimination in employment,in the family and in political representation.15. The Committee remains concerned about the relatively high rates ofunemployment in the State party, particularly among young people,women, people of pre-pensionable age and persons with disabilities.It also notes with concern the significant regional disparities, withunemployment rates ranging from 32.4 to 56.5 per cent in the nineworst affected regions.16. The Committee notes with concern that the employment of personswith disabilities has significantly decreased in recent years. TheCommittee regrets that two important tax benefits, which served asincentives for hiring persons with disabilities and which were com-330

Russiamended by the Committee in its previous concluding observations,have been removed.17. The Committee notes with concern that the informal economy in theState party has grown considerably and that illegal migration oflabour is widespread, which means that a large number of peoplework without legal and social protection.18. The Committee remains concerned about the low level of wages inthe State party, with an estimated 32.8 per cent of workers earningwages equal to or below the subsistence level. The Committee notesthat the situation is aggravated by the persistent problem of wagearrears. The low level of the minimum wage is also a cause of concernsince it remains well below the minimum subsistence level and isinadequate to provide workers with a decent living for themselves andtheir families (articles 7 and 11 of the Covenant).19. The Committee remains concerned about the high incidence of seriousaccidents in the workplace in the State party.20. The Committee is concerned about the difference in wages betweenmen and women as well as about working conditions for women. It isalso concerned about sexual harassment of women in the workplace.21. The Committee is concerned that the Labour Code may impose unduerestrictions on the right to strike, by requiring a quorum of two thirdsof the total number of workers and the agreement of at least half ofthe workers present at the meeting to call a strike.22. The Committee remains concerned about the inadequate amounts paidin pensions and social benefits, while noting that the problem ofarrears has been addressed.23. The Committee is very concerned about the high incidence of traffickingin persons in the State party and about the lack of reliable statisticson the number of people trafficked and of information on caseswhere persons have been prosecuted under existing anti-traffickinglegislation.24. The Committee remains concerned about the high incidence ofdomestic violence and the fact that victims of domestic violence arenot adequately protected under existing legislation.331

Violence Against Women: 10 Reports / Year 200325. The Committee is concerned that income disparities, which have furtherincreased in the reporting period, affect the standard of living of aconsiderable part of Russian society, and that, despite economicrecovery in the last years, the level of poverty in the State party hasstill not been brought down to the pre-1998 level. The Committee isalso deeply concerned that, according to the most recent figures(2002), an estimated 35.8 million people, or 25 per cent of the population,live on an income below the minimum subsistence level.26. The Committee remains concerned about the problem of street childrenin the major cities of the State party. The Committee is alsodeeply concerned about the growing number of orphaned children andchildren deprived of parental care.27. The Committee notes with concern that homelessness is a growingproblem in the State party.28. The Committee is concerned about delays in the payment of compensationfor houses destroyed during military operations in Chechnya.29. The Committee is concerned about reports indicating maltreatment ofconscripts in the armed forces as well as their sub-standard livingconditions and lack of access to adequate food and health care.30. The Committee is concerned about the precarious situation of morethan 100,000 internally displaced persons from Chechnya living inIngushetia. The Committee emphasizes in this respect its view thatthe closing down of tent camps without provision of alternative lodgingwould be in contravention of the Covenant.31. The Committee is concerned about the general deterioration of thelevel of availability and accessibility of health care in the Stateparty. The Committee also notes with concern that hospitals and clinicsin poor regions often do not stock all essential drugs, and that,despite the constitutional guarantee of free medical care, many healthclinics charge fees for their services and request patients to purchasemedicaments. Furthermore, the Committee is concerned about thepoor health status of northern indigenous peoples, the life expectancyof whom is estimated to be 15-20 years lower than the national average.332

Russia32. The Committee notes that the State party lacks federal legislation onthe rights of patients concerning, inter alia, professional ethics andredress for medical errors.33. The Committee remains concerned about the high incidence of tuberculosisin the State party, particularly in prisons, in the Republic ofChechnya and in the regions of the Far North, in particular amongindigenous communities.34. The Committee notes with concern the sharp increase in the HIVinfectionrate during the last three years, the increasing incidence ofHIV contracted through heterosexual contacts, and the increasingnumber of children born of HIV-positive mothers.35. The Committee is concerned about the high levels of infant andmaternal mortality in the State party. It also notes with concern thatunsafe abortion remains a main cause of maternal mortality.36. The Committee remains concerned about the spread of drug addictionin the State party.37. The Committee remains concerned about reports that a sizeable numberof children, due to migration, homelessness and neglect, do notattend school.E. Suggestions and recommendations38. The Committee urges the State party to allocate sufficient funds toreinstate basic services, including the health and education infrastructure,in the Republic of Chechnya.39. The Committee, recalling the right to self-determination enshrined inarticle 1 of the Covenant, urges the State party to intensify its effortsto improve the situation of the indigenous peoples and to ensure thatthey are not deprived of their means of subsistence. The Committeealso encourages the State party to ensure the effective implementationof the Law on Territories and Traditional Nature Use.40. The Committee urges the State party to ensure that the lack of residenceregistration and other personal identity documents do not333

Violence Against Women: 10 Reports / Year 2003become an obstacle to the enjoyment of economic, social and culturalrights.41. The Committee urges the State party to take effective measures toensure that no one will be deprived of their legal status and enjoymentof rights as a consequence of the expiry of Soviet passports on 31December 2003. The Committee also calls upon the State party toensure that the authorities in Krasnodar Krai legalize the residence ofMesketians and members of other ethnic groups who have reportedlybeen denied registration.42. The Committee recommends that the State party strengthen its effortsto promote gender equality and encourages the adoption of the draftfederal law "On State Guarantees of Equal Rights and Freedoms, andEqual Opportunities, for Men and Women in the Russian Federation"currently before the Duma.43. The Committee urges the State party to ensure that programmes topromote employment are targeted to the regions and groups that aremost affected.44. The Committee recommends that the State party take effective measuresto promote the integration of persons with disabilities into thelabour market, including by strengthening the system of job quotasfor them, or by providing penalty payments for non-employment.45. The Committee recommends that the State party strengthen its effortsto protect the human rights of workers in the informal labour marketwith a view to creating the conditions for unimpeded implementationof migrants' rights, and protecting migrants' legal rights and interests(E/C.12/4/Add.10, para. 69). The Committee also encourages theState party to consider ratifying the International Convention on theProtection of the Rights of All Migrant Workers and Members ofTheir Families.46. The Committee urges the State party to take effective measures toraise wages, prevent wage arrears, and ensure the implementation ofarticle 133 of the Labour Code, which, in line with the Covenant, stipulatesthat the minimum wage must not be lower than the worker'sminimum subsistence level.334

Russia47. The Committee urges the State party to ensure that adequate funds areallocated for the prevention of accidents in the workplace and tostrengthen the resources and powers of the labour inspectorate so as toensure that sanctions are imposed on employers who fail to observesafety regulations.48. The Committee recommends that the State party undertake effectivemeasures, including through affirmative action, to improve the workingconditions for women and to ensure equal pay for work of equalvalue. The Committee also recommends that the State party enact legislationcriminalizing sexual harassment in the workplace.49. The Committee encourages the State party to revise section 410 of theLabour Code so as to lower the quorum required for a strike ballot.50. The Committee urges the State party to ensure that under the newpensions system, introduced by Federal Act of 1 January 2002, thebasic component of pensions is raised to the minimum subsistencelevel. In view of the fact that the realization of this goal may taketime, owing to limited resources, the Committee urges the State partyto give priority to raising the minimum pension levels and to ensuringthat social benefits are targeted to the families most in need.51. The Committee calls upon the State party to ensure effective implementationof existing anti-trafficking legislation. It also encouragesthe State party to proceed with the adoption of proposed legislativeamendments and of the draft act "On Counteracting the Trafficking ofPeople" which aim at providing more effective protection for victimsand ensuring the prosecution of traffickers. Moreover, the State partyshould ensure the availability of accessible crisis centres where victimsof trafficking can receive assistance.52. The Committee calls upon the State party to intensify its efforts tocombat domestic violence by enacting specific legislation criminalizingdomestic violence and providing training for law enforcement personneland judges regarding the serious and criminal nature ofdomestic violence. Moreover, the Committee urges the State party toensure the availability and accessibility of crisis centres where victimsof domestic violence can find safe lodging and counselling.335

Violence Against Women: 10 Reports / Year 200353. The Committee urges the State party, in order to fulfil its Covenantobligations under article 11, to ensure that the increase in availablefunds in the State budget is also used to promote an adequate standardof living for all, including through a comprehensive national strategyto combat poverty. The Committee requests the State party to provide,in its next periodic report, updated statistical information on a comparativebasis on the results of the efforts undertaken to reduce thenumber of people living below the subsistence minimum to 28-30million by 2006.54. The Committee urges the State party to further strengthen measures toprevent child neglect and to ensure adequate assistance and socialrehabilitation for neglected or abandoned children. The State partyshould take effective measures to deal with the root causes of neglectand abandonment, particularly by increasing assistance rendered tofamilies with children, including by increasing the levels of familybenefits.55. The Committee urges the State party to strengthen its efforts toaddress the problem of homelessness, including by ensuring that adequateresources are set aside for the provision of social housing, withpriority given to the most disadvantaged and vulnerable groups. TheCommittee also encourages the State party to undertake a study intothe problem of homelessness so that it may acquire a more accuratepicture of the scope of the problem and of its root causes.56. The Committee calls upon the State party to guarantee that timely andadequate compensation is duly provided to all persons whose propertyhas been destroyed during the military operations in Chechnya.57. The Committee calls upon the State party to ensure that mechanismsare in place to ensure the enjoyment of basic rights of conscripts,including their access to adequate food and health care.58. The Committee reminds the State party of its obligation under theCovenant to ensure the provision of adequate temporary housing forthose people who fear that Chechnya is too insecure for them toreturn.59. The Committee calls upon the State party to ensure that the ongoingreform of the health sector will improve the quality of and equitable336

Russiaaccess to health services in all regions of the country. The State partyshould also take effective measures to improve the health status ofindigenous peoples in the regions of the Far North.60. The Committee recommends that the State party address the matter ofpatients' rights and report back to the Committee on this issue in itsnext periodic report.61. The Committee recommends that the State party intensify its effortsto combat tuberculosis, under the special federal programme "Urgentmeasures to tackle tuberculosis in Russia for the period 1998-2004",including by ensuring the availability of medicines and adequate sanitaryconditions in prisons, and by taking special measures to combatthe epidemic in the worst affected regions.62. The Committee, in line with its general comment No. 14 (2000) onthe right to the highest attainable standard of health, calls upon theState party to take urgent measures to stop the spread of HIV/AIDS.The State party should ensure that all persons know about the diseaseand how to protect themselves, including through sex education inschools, and that methods of protection are available at affordableprices. Moreover, awareness-raising campaigns should aim at preventingdiscrimination against HIV-positive people.63. The Committee urges the State party to reinforce its efforts to reduceinfant and maternal mortality. The State party should promote awarenessof safe contraceptive methods and ensure that abortions are carriedout under adequate medical and sanitary conditions.64. The Committee recommends that the State party ensure the effectiveimplementation of programmes to prevent and combat drug abuse,targeted at young people and the worst affected regions of the country,and to report back to the Committee on this issue in its next periodicreport.65. The Committee recommends that the State party reinforce its effortsunder the federal programme "Youth of Russia (2001-2005)" toensure that no child is deprived of the right to education. TheCommittee notes that a statistical survey of the number of childrenwho do not attend school was introduced in 2003 and it requests the337

Violence Against Women: 10 Reports / Year 2003State party to provide in its next periodic report disaggregated data ona comparative basis on enrolment and dropout rates among boys andgirls and vulnerable groups. It refers the State party to its generalcomment No. 13 (1999) for guidance on how to prepare the informationon the right to education in the next report.66. The Committee requests the State party to disseminate the presentconcluding observations widely among all levels of society and toinform the Committee on all steps taken to implement them in its nextperiodic report. It also encourages the State party to engage non-governmentalorganizations and other members of civil society in theprocess of discussion at the national level prior to the submission ofits next periodic report.67. Finally, the Committee requests the State party to submit its fifth periodicreport by 30 June 2008.338

Violence against Women in TurkeyA Report to the Committee against TortureContents1. Preliminary Observations .............................................................................................................................. 3411.1 Turkey’s International Obligations ................................................................................. 3411.2 General Observations ......................................................................................................................... 3432. Status of Women in Turkey ......................................................................................................................... 3442.1 Legal Status of Women in Turkey ...................................................................................... 3442.2 Social, Economic and Political Status of Women ..................................... 3463. Violence Against Women in the Family ..................................................................................... 3483.1 Domestic Violence ................................................................................................................................... 3483.2 Marital Rape ..................................................................................................................................................... 3493.3 Cultural Practices in the Family that Violate theHuman Rights of Women and Girls ................................................................................. 3493.3.1 Bride Price, Arranged and Forced Marriages and Polygamy 3493.3.2 Crimes against Women Committed in the Name of Honour 3503.3.3 Virginity Testing ........................................................................................................................... 3554. Violence in the Community ....................................................................................................................... 3564.1 Rape and other Forms of Sexual Violence ............................................................ 3564.2 Prostitution of and Trafficking in Girls ................................................................ 3585. Violence Perpetrated by the State ................................................................................................... 3595.1 Turkey’s Legal Framework ............................................................................................................ 3595.2 Comments on the Legal Frameworkand its Implementation in Practice .................................................................................. 3625.3 Gender-based Torture and other Forms of Cruel,Inhuman, or Degrading Treatment ................................................................................... 368Cases of Violence at the Hands of State Agents ................................................................... 3696. Conclusions and Recommendations ............................................................................................... 371Concluding observations of the Committee against Torture: TurkeyThirtieth session – 28 April- 17 May 2003Consideration of Reports Submitted by States PartiesUnder Article 19 of the Convention ....................................................................................................... 379A. Introduction ............................................................................................................................................................ 379B. Positive aspects ..................................................................................................................................................... 379C. Subjects of concern ...................................................................................................................................... 380D. Recommendations ............................................................................................................................................. 381339

Turkey1. Preliminary RemarksThe submission of information specifically relating to violence againstwomen to the United Nations Committee against Torture forms part ofOMCT’s Violence against Women Programme which focuses on integratinga gender perspective into the work of the five “mainstream” UnitedNations human rights treaty monitoring bodies.The consolidated second, third and fourth report submitted by Turkey tothe Committee against Torture in accordance with article 19(1) of theConvention against Torture and other Cruel, Inhuman or DegradingTreatment or Punishment, covering the period from 24 April to 31 August2001, describes in great detail the legal system and its reform with the aimof eradicating torture with regard to the implementation of the Conventionagainst Torture. However, no details are provided by the government onthe implementation of the Convention in practice, nor does the report providegender disaggregated information concerning torture and other formsof violence against women. OMCT regrets the lack of information providedas, in reality, violence against women at the hands of state agents aswell as private individuals appears to be widespread. United Nationsexperts, the Council of Europe and numerous international and TurkishNGOs have recently reported on the continuing violations of human rightsand increasingly sophisticated methods of torture in Turkey.In light of the lack of information on gender-based torture and other formsof violence against women in the government report, this report willexamine the effects of gender on the form that human rights abuses inTurkey take, the circumstances in which the abuse occurs, the consequencesof those abuses, and the accessibility of remedies. The reportbegins with a discussion of discriminatory legal provisions. The reportplaces particular emphasis on domestic violence, crimes committedagainst women and girls in the name of honour, virginity testing, forcedmarriages, the high rate of suicide among girls, prostitution and traffickingof women, as well as rape and other forms of sexual violence committedby state officials against women.1.1 Turkey’s International ObligationsTurkey ratified the Convention Against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment (hereinafter, the Convention341

Violence Against Women: 10 Reports / Year 2003against Torture) on 2 August 1988. Upon ratification Turkey recognizedthe competence of the Committee against Torture to receive and processindividual communications under articles 21 and 22 of the Conventionagainst Torture.Turkey is a State Party to the Convention on the Elimination of All Formsof Discrimination against Women. In General Recommendation 19, theCommittee on the Elimination of Discrimination against Women concludedthat gender-based violence, including torture, is a form of discriminationagainst women as defined under article 1 of the Convention on theElimination of All Forms of Discrimination against Women. Turkey ratifiedthe Optional Protocol to the Convention on the Elimination of AllForms of Discrimination against Women on 29 October 2002.Additionally, Turkey ratified the Convention on the Rights of the Child in9 September 1994.On 15 August 2000, Turkey signed the International Covenant on Civiland Political Rights and the International Covenant on Economic, Socialand Cultural Rights, neither Convention has yet been ratified. Under article90 of the Turkish Constitution, international treaties duly ratified, havethe force of law, and can be invoked in Turkish courts.At the regional level, Turkey is a member of the Council of Europe, ratifiedthe European Convention on Human Rights in 1954, and is seekingmembership in the European Union. In order to fulfil the commitmentsincumbent on members of the Council of Europe and to satisfy the membershipcriteria for accession to the European Union, Turkey has ratified anumber of regional human rights treaties including the EuropeanConvention for the Protection of Human Rights and FundamentalFreedoms and the European Convention for the Prevention of Torture andInhuman or Degrading Treatment or Punishment. On January 15, 2003,Turkey signed Protocol No. 6 to the European Convention on HumanRights prohibiting capital punishment in peacetime.At the national level, Article 17 of the Turkish Constitution prohibits “tortureand ill-treatment incompatible with human dignity.” Article 243 ofTurkey’s Penal Code criminalizes torture, cruel, inhuman or degradingtreatment by state officials. On November 22, 2001 the Turkish legislaturepassed comprehensive legislative bill designed to promote gender equalityin civil legislation.342

Turkey1.2 General ObservationsTurkey is a constitutional republic with a unicameral multipartyParliament of 550 members, elected directly for five-year terms. ThePrime Minister is nominated by the President from amongst the membersof parliament. The President has substantial powers including the powerto appoint members of the Constitutional Court and the Chief of theGeneral Staff. The constitution provides for the separation of powersbetween the legislature, executive and judiciary. The military considersitself the guardian of the secular order of the state exercises significantinfluence in Turkish political life, notably through the joint civilian-militaryNational Security Council (MGK) which meets monthly.In the recent elections of November 3, 2002, the Justice and DevelopmentParty (AKP) won an overwhelming majority of the seats in the parliamentsweeping aside the incumbent political establishment including formerPrime Minister Bulent Ecevit’s party which received a mere 1% of thepopular vote. The AKP is led by Recep Erdogan, a pro-Islamist formermayor of Istanbul, who, because of a 1998 criminal conviction for havingrecited a poem deemed to have been “incitement” to religious rebellion, isnot allowed to represent his party in the government. In the run up to theelections, the AKP campaigned on a moderate political platform whichincluded promoting democracy, Turkey’s bid for EU membership andTurkey’s IMF backed economic reform programme. 1 The military and thejudiciary remain suspicious of the AKP because of its pro-Islamist leanings.On August 3, 2002, the Turkish parliament introduced the EU AdaptationLaw, a substantial political reform package designed to meet EU criteriain the field of human rights. The adaptation legislation included provisionsabolishing the death penalty in peacetime but retaining it in times ofwar or imminent threat of war. An amendment to Penal Code Article 159also allows for greater freedom of speech rights, and an amendment to thebroadcasting law permits broadcasts in “different languages and dialectswhich are traditionally used by Turkish citizens in their daily lives.”Additionally, a draft law was issued by the Ministry of Justice in October2002, seeking to prevent the continuing practice torture of detainees bythe police forces by granting detainees, arrested for non-political criminaloffences, immediate access to a lawyer.343

Violence Against Women: 10 Reports / Year 2003The European Commission, in its Regular Report on Turkey’s Progresstowards Accession welcomed the legal reform efforts but remained criticalof Turkey’s performance specifically noting that torture in detentioncontinued, that the military continued to exercise disproportionate influenceon Turkish political life and that it was still uncertain whether freedomof expression would be respected in practice. 2 At the EuropeanUnion summit in December 2002 the EU postponed its decision on a startdate for membership negotiations until 2004 arguing that Turkey neededto make further progress in the area of human rights.2. Status of Women in Turkey2.1 Legal Status of Women in TurkeyThe Constitution of Turkey provides, in Article 10, for equality before thelaw of men and women without discrimination. The Article reads: “Allindividuals are equal without any discrimination before the law, irrespectiveof language, race, colour, sex, political opinion, philosophical belief,religion and sect, or any other such considerations” (emphasis added).However, there is no legislation in Turkey which punishes discriminationon the basis of sex.Article 41 of the Constitution was amended in 2001 to provide for theequality of spouses in marriage. The Constitution now provides that “Thefamily is the foundation of Turkish society and is based on equalitybetween spouses.” [Emphasis added] This constitutional amendment constitutesthe foundation for several important changes in the Civil Coderelating to family life which are further discussed below. Article 41 alsoprovides for the protection of the family, especially of the mother andchildren: “The State shall take the necessary measures and establish thenecessary organization to ensure the peace and welfare of the family,especially the protection of the mother and children, and for family planningeducation and its application.” With regard to education, article 42 ofthe Constitution states: “Primary education is compulsory for all citizensof both sexes and is free of charge in state schools.”OMCT welcomes the efforts of the Turkish legislature to promote genderequality in civil legislation through the sweeping reforms of the Turkish344

TurkeyCivil Code which came into effect on January 1, 2002. Prior to thereforms of 2002, the Turkish civil code had seen few changes since itsadoption in 1926 modeled on the Swiss Civil Code of that time. Since the1950s, women’s rights groups in Turkey have struggled to reform the codeand have argued that women’s legally subordinate position in the familyhas contributed to continuing and serious violations of women’s humanrights. 3 In 1994, a government commission was formed to prepare a draftof the new civil code and many women’s groups began an intense lobbyingeffort to push through the reforms. In 2001, the entire reform processwas almost derailed by the Nationalists and Islamists in parliament whoobjected to a measure giving women equal division of marital assets incase of divorce. The religious conservatives and Nationalists argued thatthe equal division of property acquired during marriage would “changethe family from a matrimonial union to corporation, destroy love andaffection in the family and increase the rate of divorce and consequentlyruin Turkish society.” 4 Thanks to the efforts of more than 126 women’sgroups, the objections of the Islamists and Nationalists were surmountedand the reforms were passed in the form of 1030 new articles coveringimportant amendments to family law.Under the old civil code the husband enjoyed a position of absolute legalsupremacy in the family, with the legally sanctioned authority to makechoices over domicile, children, and property. This approach has beenabandoned in favor of one that defines the family as a union based onequal partnership. This new concept is also reflected in the language ofthe new Civil Code. The terms “wife” and “husband” have been replacedby the term “spouse(s).” Moreover, the language of the Code has beenconsiderably simplified and out-of-date legalistic terminology has beenreplaced with comprehensible, modern terms, making the law more accessibleto everyone. Several noteworthy changes to the Code reflect the newapproach to gender equality: 1) The husband is no longer the head of thefamily; spouses are equal partners, jointly running the matrimonial unionwith equal decision-making powers; 2) Spouses have equal rights over thefamily abode; 3) Spouses have equal rights over property acquired duringmarriage; 4) Spouses have equal representative powers; 5) The concept of“illegitimacy” formerly used to designate children born out of wedlockhas been abolished; custody of children born outside marriage lies withthe mother. 5 The new Civil Code has also raised the legal minimum agefor marriage to 18 (it was formerly 15 for women and 17 for men), gives345

Violence Against Women: 10 Reports / Year 2003the same inheritance rights to children born outside the marriage, givessingle parents the right to adopt children, and gives women the right toretain their maiden names when hyphenated with that of their spouses.While the reform of the Turkish Civil Code constitutes a step forward interms of establishing gender equality in Turkey it is nevertheless evidentthat reforms in the legal domain alone are not sufficient to prevent genderdiscrimination and violations of women’s rights. In Turkey, women’s livescontinue to be shaped by a multiplicity of traditional practices which violateexisting laws, including early and forced marriages, polygamous marriages,honour crimes, virginity testing and restrictions on women’sfreedom of movement. In the eastern and south-eastern regions of Turkey16.3% of women living in the region were married under age 15. 6 One inten women live in polygamous marriages, although the practice ofpolygamy was banned already under the Civil Code of 1926. 7 More thanhalf of the women (50.8%) in that region were married without their consentalthough consent of both parties is a precondition for marriage underTurkish law. 8 Violations of the new code are not limited to the rural southeast of Turkey. In January 2001, shortly after the new code went intoeffect the Turkish media published a story of a “school in theEuropeanized west of the country where more than 20 girls aged between10 and 13 had been married off in exchange for a bride price.” 9 It is thusevident that the Turkish government must take further proactive steps toinsure that the provisions of the new code are enforced and respected bythe authorities and that violations of the code are effectively prosecuted.OMCT also notes with concern that the Turkish Penal Code still containsseveral discriminatory articles - in particular regarding rape. These articleswill be discussed in more depth in section 3.2.2 Social, Economic and Political Status of Women in TurkeySocietal discrimination and traditional notions of women’s role in thefamily adversely affect the ability of women to take advantage of educationaland employment opportunities and, as a result, their rate of economic,social and political participation is low. Turkey is currentlyexperiencing its worst recession since the Second World War 10 with slowingeconomic growth, rising unemployment rates, now at almost 10%, 11346

Turkeyrapid urbanization and persisting regional economic disparities. Becauseof women’s low status in Turkey, they are particularly affected by thesefactors.Although women continue to improve their professional standing particularlyin urban areas they still lag far behind men. Women make up only36% of all professional and technical workers, and only 9% of all legislators,senior officials and managers. 12 The ratio of estimated female tomale earned income is 0.46 13 and more than 90% of all property inTurkey is owned by men. A large percentage of women in rural areas areemployed in the agricultural, trade, and tourist (hotel, restaurant) sectorswhere they work as unpaid family help. 14 Despite efforts made by theTurkish government to allow more girls to continue their educationthrough the 8-year compulsory education requirement (implemented in1998), in rural areas traditional family values place an emphasis on theeducation of boys rather than girls. Thus the literacy rate for women inrural areas can be as low as 50%. 15 The overall female adult literacy rateis also significantly lower than that of men, 76.5% versus 93.5% respectively.16 The persistent practice of early marriage in rural areas alsorestricts women’s educational and economic opportunities.Turkey’s rapid urbanization is also affecting women on a number of levels.Turkey is one of the most rapidly urbanizing countries in the region.In 1975, 41.6% of the population in Turkey lived in urban centers. In2000, more than 65% of Turkey’s population was urbanized, and UNDPpredicts that at the current rate, close to 80% will be living in cities by2015. 17 This demographic trend has resulted in a clash between traditionalrural values and more modern urban lifestyles, which has affectedyoung women in particular. As young women in cities are increasinglymore educated, more exposed to the outside world and demanding moreof the freedoms associated with urban life, they are also increasingly inconflict with the older generation of their parents. This has led to a rapidrise in suicides among urban and rural women as well as murders, beatingsand other forms of domestic violence. 18Although there are no legal restrictions on political activity by women,female participation in political life remains very limited. In former PrimeMinister Bulent Ecevit’s government there were no female ministers in his35-member cabinet, and only 4.2% of parliamentarians were women.347

Violence Against Women: 10 Reports / Year 2003Currently, there is one woman in the government and only 24 women outof 550 people (4.4%) in parliament.As a social group, women in Turkey are isolated from political and economicdecision-making. OMCT is deeply concerned by the lack of opportunityfor Turkish women to make decisions in the political, economicand cultural contexts as this has serious implications for the advancementof women and the full enjoyment of their fundamental rights. Specifically,the unequal gender power relations created by discrimination in education,employment and in political life renders women vulnerable to violence,both in the domestic and the community sphere.3. Violence Against Women in the Family3.1 Domestic ViolenceDomestic violence is a grave problem in Turkey with as many as 90% ofTurkish women experiencing violence at the hands of their husbands andboyfriends. 19 This violence within the home takes both physical and psychologicalforms. Many women report that their husbands beat them ontheir wedding night. 20 Although the problem of domestic violence isextensive in Turkey, there is no comprehensive legislation concerningdomestic violence. 21Very few women report domestic violence to the authorities. The fewwomen who do go to the authorities claim that the police are not gendersensitive and attempt to find a compromise between the husband and wiferather than treating the violence as a crime. 22 OMCT is currently assistinga victim of domestic from the region of Diyarbakir who tried to file acomplaint with the police. However, they refused to register the complaint,instead, they have beaten the woman.Additionally, when a complaint is successfully filed, the punishments areoften weak, sometimes as little as a week in prison, if there is any punishmentat all. 23 Within such a system, most women prefer to stay silent thanto report the crime to the police and risk retaliation by their husbands, orother members of the family, since the police will not likely take protectivemeasures for the victim.348

TurkeyA new law passed in 1998 strengthens protection orders for domestic violencevictims, allowing a variety of measures to be taken, including,ordering the perpetrator “not to use violence or threatening behavioragainst the other spouse or children . . . , to leave the abode shared withthe spouse or children and not to approach the abode . . . or their places ofwork, not to damage the property of the spouse or children . . . , not tocause distress to the spouse or children . . . using means of communication,to surrender a weapon or other similar instruments to the police,[and] not to arrive at the shared abode while under the influence of alcoholor other intoxicating substances . . . .” 24 Although this represents astep in the right direction, the application of this law has been unworkablegiven the prevailing attitudes of law enforcement officers. 25The shelters that exist in Turkey are widely utilized by abused women,indicating the necessity for such mechanisms. Sadly, several shelters haveclosed in past years due to lack of funding. 26 In many regions there are noshelters at all.3.2 Marital RapeOMCT notes with concern that there are no specific provisions makingmarital rape a crime in Turkey.3.3 Cultural Practices in the Family that Violate the Human Rightsof Women and Girls3.3.1 Bride Price, Arranged and Forced Marriages and PolygamyIn Eastern Turkey, according to a study by Women for Women’s HumanRights (WWHR) interviewing 599 women in the region, the payment ofbride prices is a widespread practice. 27 According to this tradition, a husbandor his family has to pay the family of the bride a certain sum in orderto complete the marriage of the two. The majority of women interviewedin the study (61%) said that their husbands had paid a bride price to completethe marriage. 28 Interestingly, over three-quarters of the women interviewedindicated that they were against the practice of paying a brideprice, mostly because they felt that the practice treated women as thoughthey were property. 29 349

Violence Against Women: 10 Reports / Year 2003Although the law in Turkey provides that the consent of both the man andthe woman is required before a marriage can be concluded, the WWHRstudy in Eastern Turkey revealed that most women in that region had nochoice in who they married. About 60% of all marriages in EasternTurkey are arranged by the family, and even where the couple arrangesthe marriage on their own, it is often conditioned on obtaining the family’sconsent. 30 The study also reports that just over half of the womeninterviewed were married without their consent and just less than halfwere not consulted at all about their future spouse. This tradition ofarranged marriages appears to be changing as many young women andmothers of young women agree that a woman should be able to chooseher own spouse. 31The study also revealed that 1 in 10 women live in polygamous marriages.Because polygamy is forbidden by law in Turkey since 1926, women inpolygamous unions are subject to gross inequalities as only one womancan have a civil marriage and the rights that accompany a civil marriage.All other wives are relegated to religious marriages, which grant themfewer rights. 32Practices such as bride-price, arranged and forced marriages, andpolygamy deny women respect as independent human beings. Such practicesalso limit the power that women have to direct their own livesbecause their husband or their family controls them and there is muchsocietal pressure for women to obey their husbands and their parents.Such lack of power can make women vulnerable to violence. In such anatmosphere, it is difficult for women to find a space where they areempowered to speak out against practices that treat them as property, limittheir decision-making capacity, or otherwise restrict their ability to takeadvantage of the rights accorded to them by law in Turkey.3.3.2 Crimes against Women Committed in the Name of HonourSome of the most serious violations of human rights which specificallytarget women are crimes committed in the name of “honour.” “Honourcrimes” are particularly prevalent in, but not limited to, the Eastern andSouth-eastern regions of Turkey but they have also been reported in themajor Turkish cities, including Istanbul and Izmir and also in Turkishimmigrant communities in other countries. 33 The killing of women and350

Turkeygirls occurs when a woman allegedly steps outside her socially prescribedrole, especially, but not only, with regard to her sexuality and to her interactionwith men outside her family. The killing is usually committed by amale member of the family, frequently a minor, and the punishment istypically minimal if any, because Turkish law enforcement authoritiesgenerally condone this practice.Accurate statistics on the number of “honour crimes” committed inTurkey do not exist, in part because such crimes are not systematicallyprosecuted by the authorities and thus go unreported. Also, police recordsin Turkey do not break down homicides into specific types. Nevertheless,women’s rights groups estimate that at least 200 girls and women aremurdered each year by their families, although they say that the real numbersmay be much greater. 34The practice of “honour killings” and its persistence is a subject ofincreasing international concern and has received the attention of UnitedNations experts and civil society. The U.N. General Assembly addressedthe issue of “honour crimes” in its resolutions 55/68 and 55/111. In resolution55/66, the General Assembly expressed deep concern at the persistenceof various forms of violence against women and crimes againstwomen in all parts of the world, including crimes committed in the nameof “honour,” and reaffirmed that violence against women both violatedand impaired or nullified the enjoyment by women of their human rightsand fundamental freedoms. In resolution 55/111, the General Assemblycalled upon governments to investigate promptly and thoroughly crimescommitted in the name of passion or in the name of “honour,” to bringthose responsible to justice before an independent and impartial judiciary,and to ensure that such killings were neither condoned nor sanctioned bygovernment officials or personnel. In this context it is worth noting thatTurkey has officially demonstrated its support for the efforts of the UnitedNations in eliminating the practice of “honour crimes” by voting in favorof both General Assembly resolutions.On July 2, 2002, the Secretary-General of the U.N. reported to theGeneral Assembly on measures taken by Member States and activitieswithin the United Nations system on working towards the elimination ofhonour crimes. 35 In his report, the Secretary General noted that severalU.N. Human Rights treaty bodies, notably the Committee on the351

Violence Against Women: 10 Reports / Year 2003Elimination of Discrimination Against Women and the Committee on theRights of the Child, had expressed concern that the Turkish Penal Codecontains provisions which discriminate against women and which provideloopholes for perpetrators of “honour crimes.” 36 Additionally, he notedthat that the Human Rights Committee, in adopting general comment 28on article 3 of the International Covenant on Civil and Political Rights,stated that “honour crimes” which remain unpunished constitute a seriousviolation of the Covenant, and that laws which imposed more severepenalties on women than men for adultery or other offences also violatedthe requirement of equal treatment. 37The Special Rapporteur on violence against women, its causes andconsequences, and the Special Rapporteur on extrajudicial, summary, orarbitrary executions have both reported on the continuing occurrenceof “honour crimes” in Turkey today. 38 Specifically, the SpecialRapporteur on extrajudicial, summary and arbitrary executions, notedwith great concern in her report on her mission to Turkey, that theincidence of crimes committed in the name of “honour” are underreportedand rarely prosecuted. She states that “[r]eports from women’s rightsgroups confirm that only a few cases [of honour killings] come to light,as the local authorities and society in general condone the crime. A largenumber of cases go unreported and the few that are reported hardlyever reach the trial stage. The exceptional cases brought to trialand ending in convictions receive a token punishment.” (emphasis supplied)The concept of “honour” forms part of an entire system based on a codeof behaviour imposed on women and girls. In this system, a man’s honouris understood to be his reputation as a member of the community (seref)or as determined by the chastity of his female family members (namus). Athreat to the namus encourages the man to act in defence of their “honour.”When namus has been lost by unchaste conduct, it can only berestored by killing its offender. Cultural and legal norms protect men’sability to do so. Husbands, fathers or brothers have gone unpunished aftermurdering their wives, daughters or sisters in order to defend the “honour”of the family or their own “honour.” Alarmingly, the SpecialRapporteur on extrajudicial, summary or arbitrary executions notes thatthe practice of “honour killings” is so culturally entrenched in Turkey thatapart from some women’s rights organizations, all other human rights352

TurkeyNGOs she spoke with did not consider “honour killings” to be a humanrights concern but rather a “social issue.” 39The Turkish government has taken some steps to address the needs ofwomen in danger of being victimized by these practices. There are a fewgovernment-run women’s shelters in the urban centers, however, andaccording to the Special Rapporteur on violence against women, theseshelters are insufficient and ineffective in guaranteeing the right to life ofthreatened women. 40 According to information received by OMCT, inmost cases when a potential victim tries to take refuge with the police,instead of sending her to a women’s shelter, or taking other protectivemeasures, they reportedly hand her over to the family, requiring only thatthe family guarantee not to harm the girl or woman. Family members whothreaten the lives of their female relatives are neither arrested nor prosecutedfor making such threats.The Penal Code is inadequate to protect women and girls from “honour”crimes. In fact, OMCT is concerned that the structure of the Turkish PenalCode perpetuates the idea that a woman’s sexuality should be controlledby her family.Although Turkey’s criminal laws do not explicitly provide for an “honourdefence,” several provisions of national law contain defences that havebeen used in order for perpetrators of the so-called “honour killings” toreceive reduced sentences.Article 462 of the current Penal Code provides that as regards perpetratorswho commit offences [homicide and battery] against the wife, husband,sister or offspring, at the time the victim is caught while engaged in theact of adultery or illegal sexual intercourse, or while the victim was aboutto commit adultery or about to engage in illegal sexual intercourse, orwhile the victim was in a situation showing, free from any doubt, that heor she has just completed the act of adultery or illegal intercourse; oragainst another person caught participating in such acts with the aforesaidrelatives, or against both, the punishment prescribed for the offence shallbe reduced to one-eighth and heavy imprisonment shall be commuted toimprisonment. Although this article can result in the justification of “honourkillings,” reports indicate that it is, in reality, rarely used as adefense. 41 Article 51 of the Penal Code is more frequently used in trialsfor “honour” crimes than article 462 of the Penal Code. Article 51 of the353

Violence Against Women: 10 Reports / Year 2003Penal Code provides that “If a person commits a crime in the heat ofanger or under influence of strong grief caused by an unjust provocation,he shall be punished in case the punishment of death is prescribed for theoffence, by heavy life imprisonment; and if heavy life imprisonment isprescribed for the offence, by heavy imprisonment for twenty-four years.In other cases the punishment prescribed for the offence shall be reducedby one-fourth. Where provocation is grievous and severe, heavy imprisonmentfor twenty-four years shall be given instead of punishment by death,and heavy imprisonment for not less than fifteen years shall be giveninstead of heavy imprisonment. Other punishments shall be reduced byone-half to two-thirds.”Although the word “honour” is not mentioned in this article, it has beensuccessfully used as a mitigating factor in “honour” crimes cases tried inTurkey. Judicial practice in the regions most affected by the practice of“honour killings” shows an implicit acceptance of an “honour” defenceand judges often use their discretion to allow culture and tradition to serveas a mitigating factors. Because of the general social acceptance of honouras an extremely important element of Turkish culture, sentence reductionsfor the perpetrators of crimes committed in the name of honour arerarely challenged.Article 453 provides for a reduction of punishment for the murder of anewborn child by the mother or a first-degree relative if the murder wascommitted in the name of honour.OMCT welcomes a recent court decision (Kahramanmara Agir CezaMahkemesi 2002/375 E., 2003/87) on 27 February 2003. Articles 449and 450, which provide for higher penalties for murders in the family,were applied in the “honour killings” case of Kahramanmara. The perpetratorwas sentenced to life time imprisonment. OMCT hopes that thisexample will be followed in the future and that it does not remain anexception.OMCT notes that other manifestations of the concept of “honour” are thepractice of virginity testing, as described below, and forced marriages.Moreover, the fact that the Turkish Criminal Code defines sexual violenceagainst women as “Felonies against public decency and family order,” asopposed to other violence against a person, which is defined as “Feloniesagainst Individuals” is based on the notion of “honour.” OMCT notes with354

Turkeyconcern that the concept of “honour” silences women who have been thevictim of sexual violence.3.3.3 Virginity TestingWomen’s sexuality as a reflection of family honour is also manifested inthe practice of virginity testing. Due to beliefs that the reputation of thefamily is closely connected to the sexual behaviour of female familymembers, it is considered to be both the right and the responsibility of thefamily to subject their daughters to virginity testing. Another issue is theamount of money which has to be given to the family of the bride by thegroom’s family, and “marriages through mediation of go-betweens.” 42In 1999, a governmental decree was passed to differentiate virginityexams from vaginal or anal exams required by law, as with allegations ofrape and sexual conduct with minors. In such cases, a judge may order anexamination as essential to the case but written approval from the office ofthe prosecutor must accompany the order. 43 This statute makes clear thatvirginity testing should not be used “for reasons of disciplinary punishment,against [the woman’s] consent or in a manner which will hurt ortorment [the woman].” 44 However, forced virginity testing by familymembers continues to be widespread and endorsed by government officials.Women are frequently taken to the hospital for a virginity test byparents who suspect that the woman has lost her virginity, or by husbandswho, on the wedding night, suspect that their new wife is not a virgin. 45Although the doctors must ask for the woman’s consent before performingthe exam, women have little choice but to consent given the circumstancesand the social pressure to obey their husband and parents.In July 2001 Turkey’s Minister of Health, Osman Durmus, announced thatnursing and midwife students would have to pass a virginity exam beforebeing admitted to their studies. Any student who was not a virgin wouldnot be accepted.According to information received, in many “honour killing” trials, thevirginity of the victim is tested by forensic scientists. The virginity of thevictim is reportedly taken into account during trial and sentencing.Moreover, the Turkish State itself is reportedly also involved in forcible355

Violence Against Women: 10 Reports / Year 2003virginity control exams. Young girls and women in detention facilitiescontinue to be subjected to virginity tests by state officers as a means ofhumiliation. 46The maintenance of female virginity has traditionally been equated with“family honour,” and continues to be one of the greatest causes of violenceagainst women. Coercive virginity tests are a form of degradingtreatment, which are both discriminatory and unsafe, and constitute a violationby State authorities of the bodily integrity, person and dignity ofwomen in Turkey.A problem closely related to the maintenance of female virginity and familyhonour is the high rate of suicide among young girls in Turkey. Girlscommit suicide in large numbers because they have lost their virginity orbecause they have been forced into marriage or sent away to special reeducationestablishments. 47 Oftentimes, a woman who has somehow violatedthe family “honour” is given the choice of committing suicide,rather than being killed by a family member, and usually women choosethis option. 484. Violence in the Community4.1 Rape and other Forms of Sexual ViolenceAs mentioned above, articles 414-424 of the Turkish Criminal Code dealwith crimes of sexual assault, entitled “Felonies Against Public Decencyand Family Order.” The title of this section of the Code demonstrates thatthe approach taken by State authorities to the investigation and the prosecutionof sexual violence does not stress the violation of the physical andpsychological integrity of victim, but rather the harm suffered by the familyand the community.Article 414 states that “whosoever rapes a minor under the age of 15 shallbe sentenced to a minimum of five years imprisonment.” If force, violence,threats or abuse of minors is involved then the minimum sentenceis 10 years’ imprisonment. According to article 415, “Those who commitan act or action against the honour and chastity of a child who has notcompleted the age of 15 shall be imprisoned from two to four years and if356

Turkeythis act and action shall be executed under the conditions specified in thesecond paragraph of the above article, the imprisonment period shall be 3to 5 years.” Article 416 provides that sexual intercourse with a personbetween 15 and 18 years, even if consensual, constitutes a crime and carriesa punishment of from six months to three years imprisonment.According to article 417, “If the acts and actions specified in the abovearticles are committed by more than one person or committed by one ofthe brothers, family members, parents, guardians, teachers, trainers or servantsor those to whom the child is left, the penalty foreseen by the lawshall be increased by half.”The Turkish Criminal Code defines rape of a virgin aged 15 or over with apromise of marriage as a crime under article 423(1) providing that anyonetaking the virginity of a girl above 15 years of age with the promise ofmarrying her shall be sentenced to between 6 months and 2 years ofimprisonment. If the man marries the woman, the case and the punishmentare deferred. However, if the couple divorce within five years andproceedings are initiated and the husband is found guilty, the aforementionedpunishment is implemented. The crime is only punishable if thevictim was a virgin at the time of the rape.OMCT is very concerned by the fact that sex crimes committed againstnon-virgins are perceived to be a less serious offence than those committedagainst virgins. Moreover, OMCT is gravely concerned by the fact thatthere shall be no punishment in cases of rape when the perpetrator marriesthe victim. This provision may lead to a woman being pressured into marryingher rapist in order to preserve her family’s “honour,” thus punishingthe victim while the perpetrator is acquitted.Moreover, according to article 434 of the Turkish Criminal Code, if agroup of men abduct, rape, and commit sexual offences against a minor,they commit a crime. However, if one of the men who commit this crimemarries the victim, charges against all of them are dropped.As the Turkish Penal Code currently stands, the definition of rape hasbeen interpreted by Turkish Supreme Court of Appeals as penetration ofthe vagina by the penis, or as anal rape of a man or woman by the penis. 49This definition of rape is very limited as, for example, rape with an objectand forced oral sex are not considered rape and provide for a lesser punishment.357

Violence Against Women: 10 Reports / Year 20034.2 Prostitution of and Trafficking in GirlsAccording to the Directorate General on the Status and Problems ofWomen, 50 women and girls in Turkey enter into prostitution due to lowwages or sexual harassment in previous jobs, and choose prostitutionbecause it guarantees them economic security. One third were forced intoprostitution by husbands and boyfriends. 51Prostitutes are required to register and undergo regular medical examinations.Only single, Turkish women over the age of 18 may register andregistered women cannot marry while registered. 52 However, mostwomen prostitutes work outside the official system. Unregistered prostitutesare reportedly at the mercy of the police, facing violence and sexualabuse as well as arbitrary detention in police stations. 53During the past decade, Turkey has become a major destination and transitcountry for trafficking in women and girls for the purposes of prostitution.According to the International Organization for Migration (IOM)and domestic NGOs, most trafficked women and girls in the country arefrom Albania, Bulgaria, Moldova, Romania, and the Ukraine. Accordingto the IOM, arrests (and in most cases, deportation) of nationals fromMoldova, Romania, and Ukraine rose from 6,000 in 1998 to approximately11,000 in 1999. 54Many girls and women come to Turkey believing that they will be legitimatelyemployed as models, entertainers or translators. Once thesewomen and girls arrive in Turkey, they find themselves in debt bondage totheir traffickers. Women who attempt to escape are at risk of being beaten,gang-raped, or killed.The Turkish government does not generally provide protection or socialservices to victims of trafficking. Victims of trafficking are eligible to useonly one of the eight government run battered-women’s shelters and inpractice, trafficked women are unable to avail themselves of even the minimalprotection offered by this one shelter. 55 Moreover, the government’sstrategy to deal with trafficking is limited to tightening immigration controlsincluding restricting the avenues to attainment of Turkish citizenshipthrough marriage 56 and deportation of any foreigner linked to commercialsex-work 57 without screening to identify trafficked persons. 58358

TurkeyTurkey has signed but not ratified the Trafficking Protocol supplementingthe Convention Against Transnational Organized Crime. The reform legislationof August added criminal code provisions that imposes heavyprison sentences for the smuggling or trafficking of persons.However, OMCT is extremely concerned by the fact that Turkey does notprovide adequate protection, assistance, education or rehabilitation to victimsof trafficking. Victims of trafficking are treated as criminals by theTurkish authorities and are often summarily deported to their country oforigin.OMCT believes that by returning women without making a thoroughinquiry into the risk of torture that they may face upon their return,Turkey is violating the principle of non-refoulement, enshrined in article 3of the Convention against Torture as well as in other instruments such asthe 1951 Convention relating to the Status of Refugees, to which Turkeyis a State party. According to article 3 of the Convention against Torture,no State party shall expel, return (‘refouler’) or extradite a person toanother State where there are substantial grounds for believing that he orshe would be in danger of being subjected to torture. Before deciding toexpel anyone, Turkey has the duty to take into account the human rightssituation and the effective state protection against persecution in the stateof return in relation to the risk that the individual concerned might face inthis context.5. Violence Perpetrated by the State5.1 Turkey’s Legal FrameworkArticle 17 of the Turkish Constitution states that: “No one shall be subjectedto torture or ill treatment; no one shall be subjected to penalty ortreatment incompatible with human dignity.” Until quite recently, theTurkish Penal Code provided a very narrow definition of torture, limitingit to acts carried out by civil servants for the purpose of extracting confessionsof the criminally accused. The Convention against Torture obligesStates parties to prohibit torture regardless of the purpose. On August 26,1999, the Turkish legislature passed Law No 4449 which broadened the359

Violence Against Women: 10 Reports / Year 2003definition of torture in Article 243 to include acts of torture by civil servantsand public employees carried out for any purpose and increased thepenalty for torture from the previous maximum of 5 years to 8 yearsimprisonment. Article 243 now reads: “A civil servant or other publicemployee who resorts to torture or cruel, inhuman or degrading treatmentin order to make a person confess a crime, to prevent a victim, plaintiff,somebody participating in a trial or a witness from reporting incidents, toprevent them from filing a formal complaint or because they filed a formalcomplaint or for any other reason, shall be sentenced to a heavyprison penalty of up to eight years and permanent or temporary disqualificationfrom service.” Law No. 4449 also increased the punishment for illtreatment;Article 245 of the Penal Code now provides that “thoseauthorized to use force and all police officers who, while performing theirduty or executing their superiour’s orders, threaten or treat badly or causebodily injury to a person or who actually beat or wound a person in circumstancesother than prescribed by laws and regulations, shall be punishedby imprisonment for three months to five years and shall betemporarily disqualified from the civil service.”Article 15 of the Convention against Torture imposes an obligation onStates parties to “ensure that any statement which is established to havebeen made as a result of torture shall not be invoked as evidence in anyproceedings, except against a person accused of torture as evidence thatthe statement was made.” Under Article 238(2) of the Criminal ProcedureLaw, statements of suspects obtained by means of torture or other ill-treatmentat police stations or at the offices of the prosecutors cannot be usedas evidence in trials. In 1992, the Turkish Code of Criminal Procedurewas amended to provide that torture and ill-treatment constituted “prohibitedinterrogation methods.” 59In an effort to satisfy EU human rights criteria for accession, Turkeyadopted constitutional amendments on October 4, 2001 and three legislativereform packages in February, March and August 2002, Acts No.4744, 4748 and 4771, addressing several human rights issues includingcapital punishment, pre-trial detention, access to counsel and notificationof next of kin when someone is placed in custody. With regards to the preventionof torture, the constitutional amendments of October 2001 includedan amendment to Article 19(5) reducing the maximum period of policecustody for collective offences to 4 days from a previous maximum of 7360

Turkeydays. The amendment provides for an exception to the 4-day rule in casesof offences falling under the jurisdiction of State Security Courts inregions under a state of emergency. In these cases the period of policecustody can be extended to 7 days, whereas the previous rule allowed fora 10 day extension. The amendment imposes an obligation on a judge tohold a hearing before extending the period of custody. In this context it isworth noting that police custody refers to the period immediately followingarrest of a suspect when s/he is detained at a police station but befores/he has been brought before a judge for a judicial determination respectinghis/her custody status. Normally at the initial hearing the judge willmake a determination as to whether to release the detainee or extend thecustody period. In the latter case the detainee is transferred from thepolice station to a prison. The constitutional amendment to Article 19(5)shortening the period of police custody is significant because it is in thisinitial phase of custody when most instances of torture occur.Amendments to Article 16 of the Law on the Establishment and TrialProcedures of the State Security Courts have improved access to counselfor detainees suspected of collective offenses falling under the jurisdictionof State Security Courts. The amendments mandate that access to counselmust be provided after 48 hours of detention whereas the previous lawallowed for incommunicado detention for up to 4 days. Persons detainedfor common criminal offences continue to have the right to immediateaccess to counsel. The right to be assisted by counsel is, however, waivablefor all detainees. An amendment to Article 19(6) of the constitutionprovides that the next of kin of a detained person shall be notified “withoutdelay” of the detention of their relative. This amendment removesprior language of Article 19(6) which provided broad exceptions to therights of notification.Other efforts have been made by the Turkish government to prevent tortureand ill-treatment. In May 2002, a regulation was adopted forbiddingthe blindfolding of detainees in police custody. In June 2002, in responseto criticisms by the European Committee for the Prevention of Torture,the Director General for Security issued a circular prohibiting the projectionof light into the face of suspects during interrogation and providingthat interrogation rooms may no longer be painted black. The circular alsocalled on all officials to be vigilant against torture. In August 2002, thelegislature provided for the possibility of retrial for criminal and civil361

Violence Against Women: 10 Reports / Year 2003cases to comply with the rulings of the European Court of Human Rights(ECtHR). This law, however, was formulated to apply only to cases filedwith the ECtHR after August 2003. The legislature also amended Article13 of the Civil Servants Law rendering public officials found guilty of tortureor ill-treatment personally liable to pay compensation set by the judgmentsof the ECtHR. 60The Turkish Government has instituted training programmes for lawenforcement agencies and the judiciary to enhance awareness of andrespect for human rights among its civil servants. The curriculum ofpolice officers has been extended from 9 months to 2 years and courses onhuman rights have been included in the programme. The rulings of theECtHR are translated and published in the Police Academy magazine, andthe country findings of the European Committee for the Prevention ofTorture continue to be made public by the Turkish authorities. InDecember 2001, in an effort to strengthen its human rights monitoringand reporting mechanisms the Turkish government set up the HighHuman Rights Board consisting of representatives from the Ministries ofthe Interior, Justice and Human Rights Boards in several provinces.5.2 Comments on the Legal Framework and its Implementation inPracticeFollowing his visit to Turkey in November 1998, the UN SpecialRapporteur on Torture reported that despite the efforts of the Government,torture persists in Turkey on a widespread scale. 61 Recent reports of theSpecial Rapporteur on Torture, the Special Rapporteur on Extrajudicial,Summary or Arbitrary Executions, the European Committee for thePrevention of Torture, and numerous Turkish and international NGOshave confirmed the widespread and continuing use of torture in Turkey. 62Indeed, Turkey’s consistently poor human rights record was one of themain reasons it failed to secure a start date during the EU summit meetingin December 2002 for accession talks to begin.OMCT welcomes the legal reforms described above but remains extremelyconcerned about the continuing systematic use of torture in Turkey andthe lack of good faith and due diligence on the part of Turkish lawenforcement authorities in the implementation of these reforms. The362

TurkeyTurkish government must do much more in terms of monitoring complianceand training its civil servants. Moreover, some of the Constitutionaland statutory amendments do not go far enough in protecting personsfrom torture, while still others contain implementing provisions which areambiguous and perpetuate proscribed practices. OMCT also notes withconcern that public officials, including prosecutors and police officers arereported to be unaware of recent legal changes and continue to operateunder the old rules.It is of grave concern that Turkish law still does not guarantee immediateaccess to counsel for detainees under the jurisdiction of the State SecurityCourts. Over the past few years, United Nations experts, the EuropeanCommittee for the Prevention of Torture and others have repeatedly calledon Turkey to abolish incommunicado detention at police stations as thesingle most important step in eradicating torture in Turkey. As describedabove, the current law still allows for the detention of persons at policestations and gendarmeries for two days without access to lawyers. It isduring this period of incommunicado detention that police most frequentlytorture and mistreat persons in their custody. Moreover the denial ofaccess to counsel for detainees under the jurisdiction of the State SecurityCourts is reported to have a “knock-on” effect for other detainees, i.e.those arrested for common criminal offences who are also frequentlydenied their rights to legal assistance. 63 Police officers are reported tothreaten these detainees with additional charges for political offences ifthey attempt to assert their right to assistance of counsel. 64 In many policestations access to counsel is routinely delayed until detainees have given aformal statement, and prosecutors and courts still rely heavily on uncorroboratedconfessions and “statements” in the prosecution and adjudicationof guilt in criminal cases. 65In its report on its visit to Turkey from 21 to 27 of March 2002, the CPTconfirmed that access to counsel remained a significant problem particularlyin the provinces. In Diyarbakir province “countless prisoners interviewedclaimed that they had been denied access to a lawyer.” 66 The factthat the right to assistance of counsel is waivable under Turkish law furtherexacerbates the problem of incommunicado detention by exposingdetainees to the risk of being compelled to waive their rights under duress.The CPT noted in the above report that “practically every person detainedover the last nine months in the Anti-Terror Department and the Narcotics363

Violence Against Women: 10 Reports / Year 2003Section at Diyarbakir Police Headquarters (and this amounts to hundredsof persons) was recorded as having waived their rights of access to alawyer.” The CPT concluded that such a collective waiver was in theireyes “scarcely credible.” 67Turkish authorities still have recourse to Article 3(c) of LegislativeDecree No. 430 which allows them to remand prisoners, whose statementsare needed in the investigation of crimes, to the custody of thepolice and gendarmeries for renewable periods of up to 10 days. Duringperiods of remanded custody in police stations, detainees are deniedaccess to an attorney and contact with family. Under the authoritygranted by this decree, prisoners are said to have been held for up to 40days at police stations where they were subjected to torture and mistreatment.68As previously mentioned, pursuant to the October 2001 amendment ofArticle 19(6) the Constitution now requires in unambiguous terms thatnext of kin be notified without delay when a relative is detained:“Notification of the situation of the person arrested or detained shall bemade to the next of kin without delay.” This constitutional requirementwas implemented in February 2002 through a statutory amendment toArticle 128 of the Code of Criminal Procedure. The new language ofArticle 128 reads: “A relative of the person apprehended or a person designatedby him shall be informed without delay, by decision of the prosecutor,of the person’s apprehension and of the order to extend the custodyperiod.” [emphasis supplied] The implementing legislation thus appears toeviscerate the Constitutional requirement of immediate notification byimposing an additional deliberative procedure, i.e. the decision of theprosecutor, rather than requiring automatic notification by the arrestingauthorities. Related to the notification requirement is the issue of recordingdeprivation of liberty. The Regulations on Apprehension, PoliceCustody and Taking Statements governs procedures at Turkish police stationsand gendarmeries for recording the fact of someone’s detention. Thetrigger for making an entry into a police station log book however,appears to be the fact of placing someone in a cell, rather than the fact ofdetaining someone at a police station. 69 This rule (Article 11 of theRegulations) implies that a detainee’s sojourn at a police station will gounrecorded to the extent that he is not placed in a cell, and indeed, maynot be recorded at all if he is released without having first been placed in364

Turkeya cell. Unreported detention deprives detainees of access to counsel, contactwith family and the outside world and exposes them to a heightenedrisk of torture and ill-treatment. Additionally, it impedes the investigationof allegations of abuse since it leaves no official record that detentionactually occurred. Unreported detention also contravenes the UN StandardMinimum Rules for the Treatment Prisoners which require the immediaterecording of detention.Impunity for serious human rights abuses including torture and illtreatmentremains a grave problem in Turkey. 70 In an effort to addressthis problem the Turkish legislature, on 2 December 1999, reformed theLaw on Accountability of Civil Servants and other Public Employees.The old law dating back to the Ottoman period was designed to providecertain immunities to civil servants acting in their official capacity bygranting local administrative boards, appointed by provincial governors,the authority to decide whether to prosecute a member of the securityforces. 71 The present law unfortunately does not go far enough in curbingimpunity and according to UN and Council of Europe experts it continuesto perpetuate the “institutional impunity extended to security forces orpublic employees in cases of crimes committed in connection with theirduties.” 72 Notably, the new law does not get rid of the requirementthat prosecutors must get permission from a government official outsidethe prosecutor’s office before being able to proceed against a civil servant.Rather, echoing the former Ottoman version, the new law still requiresprosecutors to seek the permission of the government office whoseemployee it seeks to investigate. Once the prosecutor notifies the governmentoffice, it is up to a senior officer of that office to decide whether theaccused employee is to be investigated. In cases where authorization toinvestigate is granted, the prosecutor has the discretion either drop thecase or proceed to trial. The law places no time limit on the prosecutor toreach a decision on whether to prosecute the case if authorization bythe government official is granted. The fact that this new law remainsineffective in addressing official impunity for acts of torture is confirmedby recent reports that it has been used specifically to block prosecutionsof civil servants. 73 According to Amnesty International, between thebeginning of 1999 and middle of 2000, the governor of Diyarbakir did notgive permission to investigate or prosecute a single allegation of tortureunder either the old or the new version of the law. 74365

Violence Against Women: 10 Reports / Year 2003Turkish authorities are not making good faith efforts to curb human rightsviolations using existing legal deterrents. Indeed, figures show that allegationsof torture are rarely investigated or prosecuted. 75 The TurkishParliamentary Human Rights Commission is reported to have forwarded451 complaints of torture to prosecutors’ offices around the country butreceived responses in only 69 cases, only one of which resulted in atrial. 76 In addition, courts have shown extreme reluctance to compel theappearance of public servants, such as police officers and gendarmes fortrial and consequently, the few cases that are prosecuted are subject tolengthy delays and frequently dismissed for exceeding the statute of limitations.77 During the lengthy pendancy of proceedings suspects are rarelysuspended from service in the police force or gendarmerie, but rather areallowed to continue exercising their duties and in some cases even promoted.78Despite the enhanced maximum sentences for the crimes of torture(Article 243) and ill-treatment (Article 245) described above, most prosecutionsresult in sentences at the lower end of the sentencing scale which,incidentally, remained unchanged by the recent legislative amendments,and therefore involve light sentences which are frequently suspended orconverted into fines. 79 Moreover, figures show that most cases are prosecutedunder Article 245 for ill-treatment rather than Article 243 relating totorture which carries more severe penalties. 80 These prosecutorial practicesappear to contravene the clear intent of the legislature which was toenhance the deterrent effect of the law.Additionally, lawyers, human rights advocates and victims of torture arefrequently subjected to intimidation and harassment by the Turkishauthorities who try to prevent them from seeking redress for rights violations.Recent changes to the Law on Associations have not succeeded inpreventing official harassment of Turkish human rights NGOs because thelaw still imposes cumbersome and restrictive obligations relating to theregistration and reporting of NGO activities, exposing them to the risk offrivolous and persecutory law suits. For instance, the Istanbul branch ofthe Human Rights Association is currently facing 64 law suits more thanhalf of which were brought under the Law on Associations. 81 Other legislationused to investigate and prosecute rights groups for legitimate activitiesinclude the Anti-Terror Law, the Law on Demonstrations andprovisions of the criminal code.366

TurkeyWomen’s rights groups are especially at risk of persecutory prosecutions.Eren Keskin, a prominent human rights activist who founded the LegalAid Project of the Human Rights Association, to assist women who havebeen raped or sexually abused in police custody is facing 86 lawsuitsrelating to her human rights activities. Among other things she has beencharged with “insulting the state security forces” for publicizing herclients’ claims of sexual torture by the police. Following a speech givenin Germany on 16 March 2003 on the subject of sexual assaults againstwomen in prison, a journalist, Mr. Altayli stated in a radio broadcast on 8April that he would gladly assault Ms Keskin sexually at the first opportunity.82OMCT is especially alarmed by reports that Turkish authorities areincreasingly using sophisticated methods of torture designed to evadedetection by forensic medical examination and other investigative techniques.83 Turkish authorities continue to intimidate both detainees andmedical health professionals not to report evidence of torture and medicalexaminations of detainees do not always occur outside the presence of lawenforcement officials as mandated by regulation. The situation in the easternpart of the country appears to be especially poor. The CPT receivednumerous reports of detainees who were warned not to report mistreatmentto examining physicians and it appears that the presence of lawenforcement officials during medical exams is routine. 84In part because of the de jure and de facto obstacles to legal redress facedby victims of torture in Turkey, Turkish citizens are continuing to seekredress for rights violations at the European Court for Human Rights.Between October 1, 2001 and June 30, 2002, 1874 applications were filedagainst Turkey of which 246 were made under Article 3 of the ECHRrelating to the prohibition of torture. 85 However, the Turkish governmenthas consistently failed to execute the judgments of the ECtHR thus perpetuatingthe perception that law enforcement officials are immune fromprosecution for rights violations. The Special Rapporteur on Extrajudicial,Summary or Arbitrary Executions has stated that evidence shows that“State agents [in Turkey] have been able to continue to commit gravehuman rights human rights violations, including extrajudicial executions,with the knowledge that their crimes would not result in investigation orcriminal prosecution. This systematic impunity has led to an atmosphereof fear among the population and undermined the citizen’s trust in the lawenforcement agencies and the justice system.” 86367

Violence Against Women: 10 Reports / Year 20035.3 Gender-based Torture and other Forms of Cruel, Inhuman, orDegrading TreatmentWomen in Turkey are particularly at risk of being subjected to sexual torture.Forms of torture inflicted upon women include electro-shocks to thegenitals, standing for long periods of time, being forced to strip and standnaked in front of male guards, forced virginity tests, beatings targeting thegenitals and breasts, use of high-pressure water hoses, and sexual abuseincluding rape and threats of rape. Moreover, threats of rape are oftencompounded by police taunts that rape will deprive women of their virginityand their honour.These kinds of torture and ill-treatment of women are part of the broadercontext of widespread and systematic use of torture or other cruel,inhuman or degrading treatment or punishment by the police and gendarmesin Turkey. Those suspected of holding political beliefs that areunacceptable to the government or military and Kurdish women are morelikely to be subjected to arbitrary arrest and detention, and subsequentlysubjected to torture or cruel, inhuman or degrading treatment or punishment.OMCT is concerned that discrimination against women and discriminationagainst the Kurdish people in Turkey contributes the high risk of violenceagainst Kurdish women by the State. Many cases of rape and otherforms of sexual violence in custody and by village guards in Kurdishareas have gone unpunished. One of the reasons for this impunity is thatthe State assumes protection for its own officials and does not investigateor adequately punish acts of violence committed by officials. Another reasonis that women and girls frequently do not file complaints of rape andother forms of sexual violence out of shame and fear. Due to the fact thatin Turkey a woman’s sexuality is a reflection of the family honour, if awoman is not chaste then she may be viewed as a burden in the family,not accepted, subjected to forced marriage, or even killed. Thus, while allvictims of torture are confronted with major obstacles when attempting tolodge a complaint or to seek redress, when rape or another form of sexualviolence constitute the method of torture, it is even more likely that thevictim will not complain out of fear and shame, thus leading to the negationof this violence and to the impunity of the torturer.368

TurkeyCases of Violence at the Hands of State Agents 87Yüksel Zengin, Gülbahar Topdemir, and Leyla NarinYüksel Zengin, Gülbahar Topdemir, and Leyla Narin reported to theHuman Rights Association Diyarbakır Branch that they were tortured indetention. Ms Zengin reported that she was taken to an outdoor placewhere she was beaten by the police. Ms Topdemir reported that she wasthreatened with rape and beaten. She also complained that she was forcedto listen music with high volume under detention. Ms Narin reported thather eyes were bowed, her throat was squeezed and she was electrocutedwhile she was detained.Fahriye Kaya, Ibrahim Kaya ve Yasar SimsekOn 16 January 2002 in the Silvan District of the Diyarbakir province, MsFahriye Kaya, who was detained following a house raid resulting in thedeaths of two persons, reported to the Diyarbakır Branch of the HumanRights Association that she was threatened with rape and beaten while indetention. She also said that her eyes were bowed during detention. Shestill remains in prison.Pelin ÇalıskanA representative of a journal called Atilim, Ms Pelin Çalıskan wasdetained on 3 March 2002 in Bursa and she reported that she was torturedboth physically and psychologically.M.I.M.I. who was detained on 7 March 2002 in Diyarbakır reported to theDiyarbakır Branch of the Human Rights Association that she was subjectto violence during detention: She stated: After being taken in custody inthe District I was brought to the Directorate for Security in Diyarbakırand put in a cell. After one hour, I was taken to the interrogation roomblindfolded. In the interrogation room, they were hitting my head. Theywere threatening me by saying that “let’s undress her and show to theCommander, let’s rape her then she should not be able to get married.” I369

Violence Against Women: 10 Reports / Year 2003was subject to this sort of treatment during four days. I was forced to signa paper while blindfolded. I was to faint. On the fourth day, I was taken tothe Emergency Service of the State Hospital in Diyarbakir. I was latertaken to the prosecutor’s office and was released.”E.A.Ms E.A. who was detained on 10 April 2002 and released on 12 April2002 reported the following to the Diyarbakır Branch of the HumanRights Association: “As soon as I was detained, I was taken to the HealthCentre. A nurse searched on me. When I told her that I have faint problemsshe took the note. From the health centre I was taken to theGendarmerie station in Ba?ıvar. Four gendarmerie personnel took mystatement. During the interrogation they were continuously swearing, andthreatening me with torture. I was at the same time being hit systematically.Later, I was taken to a cell. They have not provided any meal. I wasreferred to the prosecutor’s office on 12 April and I was released.H.T.Ms H.T., who was arrested on the grounds of being member of the PKK,reported to the Legal Aid Office of Sexual Abuse and Rape Project thatshe was subject to torture during four days of detention. She reported thatshe was undressed, blindfolded, her vagina was watered. She also addedthat she was forced to sit on feces in the toilet. She was also sexuallyabused with hands.Gülden Sönmez and Sevim Aniktar,Two women lawyers who are members of the Istanbul Bar Association,Gulden Sonmez and Sevim Anitkar, were subject to attacks and maltreatmentby the prison manager and guardians in Metris Prison in ?stanbul. Itwas reported that these two lawyers went to the Prison to see their clientswho were tortured in police detention before being sent to prison. Afteridentifying that their clients were tortured, they asked the Prison managementto refer them to the Forensic Medicine Department to get the reporton the torture. Upon their request, the Prison manager and guardiansattacked and hit them.370

Turkey6. Conclusions and RecommendationsOMCT welcomes Turkey’s ratification of major international andregional human rights treaties, including mechanisms that facilitate individualcomplaints procedures. OMCT is also encouraged by the passageof new laws in Turkey aimed at meeting the human rights requirementsfor membership in the European Union, including laws specificallydesigned to improve the status of women. In particular, the Constitutionand the Civil Code provides for equality between women and men.However, the Penal Code still contains discriminatory provisions againstwomen.OMCT is deeply concerned by the lack of opportunity for Turkish womento make decisions in the political, economic and cultural contexts as thishas serious implications for the advancement of women and the fullenjoyment of their fundamental rights. Specifically, the unequal genderpower relations created by discrimination in education, employment andin political life renders women vulnerable to violence, both in the domesticand the community sphere. OMCT would recommend that the governmenttake extensive steps to promote equality of women and men througheducation and awareness raising campaigns. OMCT further suggests thataffirmative action programs be instituted in both political and organizationalsettings to ensure women’s participation at political and economiclevels.Despite the many new laws that have been passed, the government has notfully lived up to its obligation to enforce the laws that protect women’srights, particularly with regard to laws concerning traditional practicessuch as polygamy, forced marriage, honour crimes, and virginity testing.As effective implementation of laws is central to any effort to promoteand protect women’s rights, OMCT would urge the government of Turkeyto raise awareness about existing laws protecting women’s rights and theharms associated with these traditional practices, institute mechanisms toencourage women to report violations of their rights, establish protectionsfor women who report violations of their rights, and train police and judicialpersonnel, and any other government official having contact withwomen whose rights have been abused, to handle cases of violations ofwomen’s rights with gender sensitivity.371

Violence Against Women: 10 Reports / Year 2003OMCT is particularly troubled by the widespread problem of domesticviolence in Turkey, with as many as 90% of women being subjected toviolence at the hands of their husbands and boyfriends. In order to effectivelycombat domestic violence, the government of Turkey must developand pass a comprehensive law addressing the problem. Such a law shouldinclude criminal penalties for men who beat their wives and girlfriends,protections for women who report domestic violence (such as shelters andother social services), establishment of gender sensitive interrogationtechniques, training of police officers about the particularities of domesticviolence cases, active recruitment of female police officers to handledomestic violence cases, rules protecting women who testify, minimumpenalties for persons found guilty of domestic violence, and wide distributionof the law to the women and men of Turkey to ensure that they areaware of their rights.OMCT is deeply concerned that marital rape is not a specific crime inTurkey and insists that the government of Turkey should specificallycriminalize the act of rape within marriage.The correlation between a woman’s sexuality and her family’s honour createsa climate of social acceptance for extreme and violent measures takenin order to control the sexual behaviour of women and girls. The mostconcrete manifestations of this restrictive social code are crimes committedin the name of honour and practices such as virginity testing andforced marriages. Related to these practices is the extremely high rate ofsuicide among girls and women who justifiably fear retribution as a resultof having transgressed social mores or who feel that they have no otherchoice if they wish to escape from a situation of forced marriage.OMCT notes that the structure of the Turkish Criminal Code placeswomen’s sexuality under the control of the family. While other forms ofviolence are considered under the title “Felonies against individuals,” rapeand other forms of sexual violence are classified as “Felonies AgainstPublic Decency and Family Order.” Moreover, in this section, several articlesrefer to the virginity of victims as a constitutive element of the crime.Although the Turkish Criminal Code does not explicitly provide for adefence based on honour, several provisions of the Code contain defencesthat are regularly used in order for the perpetrators of crimes committedin the name of honour to receive reduced sentences. Due to the general372

Turkeyacceptance of honour-related crimes by Turkish society, honour is oftenused by judges as a mitigating factor.In order to fulfil its duty to exercise “due diligence” in the prevention,investigation and punishment of violence against women and girls and toeradicate crimes committed in the name of honour and practices such avirginity testing and forced marriages, OMCT would urge the governmentof Turkey to repeal all laws that provide reduced sentences for crimescommitted in the name of honour, to enforce existing laws on incitementand assistance to commit murder and persuasion to commit suicide, and toamend all provisions in the criminal code which require the virginity of avictim as an essential element of the crime. Virginity testing should beprohibited, both in private and public establishments. The governmentmust address attitudes that justify honour killings through education andawareness raising campaigns, including comprehensive cultural trainingfor all law enforcement, prosecution and judicial officers in order toencourage recognition of this serious crime.Although OMCT welcomes the reform legislation of August, whichadded criminal code provisions that imposes heavy prison sentences forthe smuggling or trafficking of persons, OMCT is extremely concerned bythe fact that Turkey does not provide adequate protection, assistance, educationor rehabilitation to victims of trafficking. Victims of trafficking aretreated as criminals by the Turkish authorities and are often summarilydeported to their country of origin. OMCT is concerned that such a workingmethod violates the principle of refoulement as no inquiry is madeinto the situation facing women on their return to their country of origin.OMCT recommends that Turkey urgently pass a law to specificallyaddress trafficking in women and provide services to protect and rehabilitatewomen victims of trafficking.OMCT welcomes the many legal reforms that Turkey has instituted withregard to state sponsored torture. Nevertheless, reports indicating that torturepersists, that detainees do not have effective access to counsel, thatfamily members of detainees are only notified at the discretion of theprosecution, that detainees are not always registered immediately uponarrival at the detention center, and that perpetrators of torture enjoyimpunity, remain causes of concern for OMCT. The reformed laws mustbe followed by the political will to enforce them in a strict manner in373

Violence Against Women: 10 Reports / Year 2003order to combat these problems. Additionally, loopholes in the reformedlaws that allow these practices, which make detainees vulnerable to torture,to continue must be immediately addressed and amended.OMCT is concerned about the high level of intimidation of human rightsdefenders and OMCT calls upon the Turkish government to prevent andpunish such harassment in all instances.OMCT is very concerned about the high incidence of torture and ill-treatmentof women at the hands of law enforcement officials in Turkey. Inparticular Kurdish women and women who voice political beliefs unacceptablefor the government and military are at risk of violence at thehands of agents of the State. State violence often has a sexual nature.Reports demonstrate that women who are victims of torture and ill treatmentare often threatened with rape, raped, virginity tested, or otherwisesexually abused. OMCT would insist that the Government demonstrate itsopposition to sexual violence and recognize publicly that sexual violencein custody is a form of torture or other inhuman or degrading treatment orpunishment. Stripping of detainees during questioning should also beended.Of further great concern is the fact that the perpetrators of these acts ofviolence against women reportedly enjoy impunity. OMCT would callupon the Government to ensure that all acts of torture and ill treatment ofwomen in detention are appropriately investigated, prosecuted and punishedand the victims provided with adequate reparations.OMCT would recommend that the Government adopt measures to ensurethat all law enforcement personnel are aware of the provisions of humanrights law in relation to the protection of women against violence. In addition,OMCT would like to suggest that greater efforts are made to ensurethat at least one female law enforcement official is present during theinterrogation of women suspects and that women are always housed inseparate detention facilities and supervised by female wardens. It shouldbe forbidden to male officers to strip-search female detainees.Finally, OMCT would insist upon the need for the Government to fullyimplement all of the provisions of the standards and recommendations ofthe Committee against Torture, the Special Rapporteur on Torture, theSpecial Rapporteur on Extrajudicial, Summary or Arbitrary Executions,374

Turkeythe European Committee on the Prevention of Torture, the Convention forthe Elimination of All Forms of Discrimination Against Women, theBeijing Rules and Platform for Action and the Declaration on theElimination of Violence Against Women as these instruments providedetailed protection for women against violence in the family, in the communityand at the hands of State officials.1 The Economist Intelligence Unit, Turkey Country Report, November 2002.2 EU 2002 Regular Report on Turkey’s Progress towards Accession.3 Women for Women’s Human Rights, The New Legal Status of Women inTurkey, April, 2002.4 Ibid.5 Ibid.6 Ibid.7 Ibid.8 Ibid.9 Serpil Karacan, Will New Women’s Rights Correct Turkish Wrongs, available athttp://www.panos.org.uk/newsfeatures/featuredetails.asp?id=1049.10 The Economist Intelligence Unit, Turkey, Country Report, November 2002.11 Ibid.12 UNDP Human Development Indicators 2002, Turkey, available atwww.hdr.undp.org/reports/global/2002/en/indicator.13 Ibid.14 U.S. Department of State, 2001 Country Reports on Human Rights Practices.15 Ibid.16 UNDP Human Development Indicators 2002, Turkey, Ibid.17 Ibid.18 Washington Post Foreign Service, In Turkey ‘Honor Killing’ Follows Families toCities, Wednesday, August 8, 2001.19 International Helsinki Federation for Human Rights, Women 2000 : AnInvestigation into the Status of Women’s Rights in the former Soviet Union andCentral and South-Eastern Europe : Turkey, p. 453.375

Violence Against Women: 10 Reports / Year 200320 Turkish Daily News, IHD Calls Measures to Prevent Violence Against Women,November 26, 2002.21 Women for Women’s Human Rights, The New Legal Status of Women in Turkey(April 2002), p. 27.22 Int’l Helsinki Federation for Human Rights, Ibid., p. 454.23 Ibid., p. 455.24 Women for Women’s Human Rights, The New Legal Status of Women in Turkey,p. 26.25 Int’l Helsinki Federation for Human Rights, Ibid., p. 455.26 Ibid., p. 454.27 Women for Women’s Human Rights, Pinar Ilkkaracan, Islam and Women’sSexuality: A Research Report from Turkey (2001), published in Mary Hunt,Patricia B. Jung, & Radhika Balakrishnan (eds.) Good Sex: FeministPerspectives from the World’s Religions (New Jersey: Rutgers University Press(2001).28 Ibid.29 Ibid.30 Ibid.31 Ibid.32 Ibid.33 Women for Women’s Rights, NGO Report on Implementation of CEDAW inTurkey, January 1997, p. 11.34 Washington Post Foreign Service, Ibid.35 Working Towards the Elimination of Crimes Against Women Committed in theName of Honour, Report of the Secretary General, July 2, 2002, U.N. Doc.A/57/169.36 Ibid.37 See U.N. Doc CCPR/C/21/rev.1/Add.1038 See U.N. Doc. E/CN/2002/83 and U.N. Doc. E/CN/2002/74/Add.139 U.N. Doc. E/CN/2002/74/Add.1. p. 18.40 U.N. Doc. E/CN/2002/83, p.1841 Leylâ Pervizat, Honour Killings in Turkey: A Scapegoat: Article 462, Fempower,p. 10-11, No. 3, 3/2001.42 Information received from the Human Rights Foundation of Turkey in 1999.43 Women for Women Human Rights, The New Legal Status of Women in Turkey,2002, p. 29.44 Ibid.45 Int’l Helsinki Federation for Human Rights, Ibid., p. 44946 Ibid.; Amnesty International, Turkey, End Sexual Violence against Women inCustody!, 2003.47 According to information received, the number of female suicides is rapidlyincreasing in towns in Southeastern Anatolia, especially in Batman. During thefirst eight months of the year 2000, the number of recorded suicides were double376

Turkeythe country average, with a rate of 6.42 for every 1,000 members of the population.Moreover, 80.8% of the people committing suicide in Batman were womenand the majority of these were aged between 13 and 24 years. Other reasons mentionedbesides the importance of virginity and forced marriage are high unemploymentrates, inadequate housing and social and cultural problems between thepeople who have always lived in Batman and the immigrants from rural areas.Mehmet Faraç, in Töre K*skac*nda Kad*n.48 Leylâ Pervizat, Panel Presentation, Centre of Islamic and Middle Eastern Law,February 15, 2002.49 Amnesty International, Ibid.50 This Directorate General was originally linked to the Prime Minister’s office, butdue to a recent change implemented by the current government, it is now linkedto the Worker’s and Social Security Ministry, which effectively means that thestaff, scope and importance has been reduced.51 International Helsinki Federation for Human Rights, A Form of Slavery:Trafficking in Women in OSCE Member States, Report to the OSCESupplementary Human Rights Dimension Meeting on Trafficking in HumanBeings, 2000, p. 59.52 Anti Slavery International, Redefining Prostitution as Sex Work on theInternational Agenda, 1997, p. 24.53 Ibid.54 U.S Department of State, Country Reports on Human Rights Practices 2000,February 2001.55 U.S. Department of State, Trafficking in Persons Report, Victims of Traffickingand Violence Protection Act 2000, p. 103.56 Associated Press, Turkish Government Trying to Crack Down on ‘Evil’ ForeignProstitutes, June 9, 2002.57 U.S. Department of State, Trafficking in Persons Report, Ibid., p. 103.58 Human Rights Watch, World Report 2003.59 Article 135(A) Criminal Procedure Law.60 European Union, 2002 Regular Report on Turkey’s Progress Towards Accession,pp.26-27.61 U.N. Doc. E/CN.4/199/61/Add 1, paras 17, 39, and 107.62 Report of Special Rapporteur on Torture, U.N. Doc. E/CN.4/2001/66; Report ofSpecial Rapporteur on Extrajudicial, Summary or Arbitrary Executions on herMission to Turkey, U.N. Doc. E/CN/2002/74/Add.1; European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or Punishment,Preliminary Observations on visit to Turkey, 23 July 2002, available athttp://www.cpt.coe.int/documents/tur/2002-13-inf-eng.pdf.63 HRW Press Release, Curbing Torture Top EU-Turkey Priority, January 30, 2003.64 Hits and Misses on Turkey’s E.U. Accession Targets, HRW Backgrounder on theEuropean Union Regular Report on Turkey, Oct. 7, 2002.65 2002 EU Regular Report on Turkeys Progress Towards Accession, p. 28.66 Preliminary Observations of CPT on visit to Turkey from 21 to 27 March 2002,p. 6.377

Violence Against Women: 10 Reports / Year 200367 Ibid.68 Ibid., p. 8.69 Report to the Turkish Government on the visit to Turkey carried out be theEuropean Committee for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment from 2 to 14 September 2001.70 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Reporton her Visit to Turkey; U.N. Doc. E/CN.4/2002/74/Add.1. See also U.N. Doc.E/CN.4/1999/61/Add.1.71 U.N. Doc. E/CN.4/2002/74/Add.1, p.25.72 Ibid.73 Human Rights Watch, World Report 2003, p. 3; Amnesty International, Turkey:An End to Torture and Impunity is Overdue, October 2001, p.24.74 Amnesty International, Ibid, p. 24.75 Ibid, p. 36.76 Ibid, p. 36.77 E.U. 2002 Regular Report on Turkey’s Progress Towards Accession; AmnestyInternational, Ibid.78 Amnesty International, Ibid.79 E.U. 2002 Regular Report on Turkey’s Progress Towards Accession, p. 29.80 Amnesty International, Ibid.81 Human Rights Watch, A Human Rights Agenda for the Next Phase of Turkey’sE.U. Accession Process, HRW Briefing Paper, January 2003.82 The Observatory for the Protection of Human Rights Defenders – OMCT andFIDH, Human Rights Defenders on the Frontline, Annual report 2002, p. 204.83 Amnesty International, Turkey: Systematic Torture Continues in Early 2002,September 2002; U.N. Doc. E/CN.4/1999/61/Add.1.84 Report to the Turkish Government on the visit to Turkey carried out be theEuropean Committee for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment from 2 to 14 September 2001, p. 25.85 E.U. 2002 Regular Report on Turkey’s Progress Towards Accession.86 U.N. Doc. E/CN.4/2002/74/Add.1, p. 25.87 Cases received from Feray Salman, Secretary General of the Human RightsAssociation of Turkey (IHD), Ankara.378

TurkeyCommittee against TortureTHIRTIETH SESSION – 28 APRIL- 17 MAY 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 19 OF THE CONVENTIONCONCLUDING OBSERVATIONS BY THE COMMITTEE AGAINST TORTURE:TURKEY1. The Committee considered the second periodic report of Turkey(CAT/C/20/Add.8) at its 545 th and 548 th meetings, held on 2 and 5May 2003 (CAT/C/SR. 545 and 548) and adopted the following conclusionsand recommendations.A. Introduction2. The Committee welcomes the second periodic report of theGovernment of Turkey, which outlines the new measures and developmentsrelating to the implementation of the Convention that havetaken place in the State party since its submission of the initial reportin 1990. It also welcomes the updated and detailed information aswell as the extensive responses provided by the representatives of theState party.3. The Committee nevertheless regrets the long delay in the presentationof the report, which was overdue by eight years.B. Positive aspects4. The Committee welcomes the following positive aspects:(a) The abolition of the death penalty for peacetime offences;379

Violence Against Women: 10 Reports / Year 2003(b) The lifting of the long standing state of emergency;(c) The Constitutional and legal reforms intended to strengthen therule of law and align the legislation with the Convention. Suchreforms include the reduction of periods of detention in police custody;the elimination of the requirement of administrative permissionto prosecute a civil servant or public official; and the diminution ofthe number of crimes under the jurisdiction of State Security Courts.(d) The inclusion in domestic legislation of the principle that evidenceobtained through torture shall not be invoked as evidence in any proceedings;(e) The establishment of Prison Monitoring Boards, which include theparticipation of members of non-governmental organizations in theirindividual capacity, with the mandate to carry out inspections in penalinstitutions;(f) The bill submitted to Parliament concerning the establishment ofthe Ombudsman institution;(g) That visits of monitoring bodies such as the Rapporteurs of theUN Commission on Human Rights have been accepted by the Stateparty in a spirit of cooperation, and that the reports adopted by theEuropean Committee for the Prevention of Torture have been madepublic by the State party.C. Subjects of concern5. The Committee expresses concern about the following:(a) Numerous and consistent allegations that torture and other cruel,inhuman or degrading treatment of detainees held in police custody isapparently still widespread in Turkey;(b) Safeguards concerning the registration of detainees by the policeare allegedly not always complied with;(c) Allegations of lack of prompt and adequate access of persons inpolice custody to legal and medical assistance, as well as notificationto family members;380

Turkey(d) Allegations that despite the number of complaints, prosecutionand punishment of members of security forces for torture and ill-treatmentare rare, proceedings are exceedingly long, sentences are notcommensurate with the gravity of the crime, and officers accused oftorture are rarely suspended from duty during the investigation;(e) The importance given to confessions in criminal proceedings andthe reliance of the police and the judiciary on confessions to secureconvictions;(f)The alarming problems in prisons as a result of the introduction ofthe so-called “F-type prisons” which have led to hunger strikes causingthe death of more than sixty inmates;(g) The State party’s failure to execute judgments of the EuropeanCourt of Human Rights, where the payments of just compensationordered by the Court have not been fully complied with.6. The Committee is also concerned about:(a) Lack of training of medical personnel dealing with detainees onmatters related to the prohibition of torture;(b) Allegations according to which the expulsion of illegal aliens totheir country of origin or neighboring countries is often accompaniedby ill-treatment, without taking into consideration the safeguards containedin article 3 of the Convention;(c) The continuing reports of harassment and persecution of humanrights advocates and non-governmental organizations.D. Recommendations7. The Committee recommends that the State party should:(a) Ensure that the full benefits of the safeguards against ill-treatmentand torture of detainees, including those held for offences underthe jurisdiction of State Security Courts, be available in practice, particularlyby guaranteeing their right to medical and legal assistanceand to contact with their family;381

Violence Against Women: 10 Reports / Year 2003(b) Establish measures to guarantee that prompt, impartial and fullinvestigations into the numerous allegations of torture and ill-treatmentare carried out, and ensure an efficient and transparent complaintsystem in this connection;(c) Repeal the statute of limitations for crimes involving torture;expedite the trials and appeals of public officials indicted for tortureor ill-treatment; and ensure that members of the security forces underinvestigation or trial for torture or ill-treatment be suspended fromduty during the investigation and dismissed if convicted;(d) Ensure that ongoing inspections of prisons and places of detentionby judges, prosecutors or other independent bodies (such asPrison Monitoring Boards), continue to take place at regular intervals,and that appropriate action is taken upon their inspection reports andrecommendations by the responsible authorities;(e) Guarantee that detention records of detainees in police custodyare properly kept from the outset of the custody period, including theperiod when they are removed from their cells, and that such recordsare made accessible to their families and lawyers;(f)Solve the current problem in prisons generated as a result of theintroduction of “F-type prisons” by implementing the recommendationsof the European Committee for the Prevention of Torture and byentering into serious dialogue with those inmates continuing hungerstrikes.(g) Review the current legislation and practice in order to ensure thatthe expulsion of irregular aliens is performed within the legal guaranteesrequired by international human rights standards, including theConvention;(h) Ensure that fair and adequate compensation, that includes financialindemnification, rehabilitation, and medical and psychologicaltreatment, is provided to the victims of torture and ill-treatment;(i) Ensure that human rights defenders and non-governmental organizations,together with their premises and archives, are respected;(j) Include the prevention of torture in the Human Rights Education382

TurkeyProgramme of Turkey (1998-2007) and ensure that all the new developmentsin legislation are made widely known to all public authorities.(k) Intensify training of medical personnel with regards to the obligationsset out in the Convention, in particular on the detection of signsof torture or ill-treatment and the preparation of forensic reports inaccordance with the Istanbul Protocol;(l) Provide in the next periodic report detailed statistical data, disaggregatedby crimes, regions, ethnicity and gender, of complaints relatingto torture and ill-treatment allegedly committed by lawenforcement officials, as well as related investigations, prosecutions,and penal and disciplinary sentences;(m) Provide in the next periodic report information on the implementationof the “Return to Village Programme” regarding internally displacedpersons;(n) Widely disseminate the Committee’s conclusions and recommendationsin the State party in all appropriate languages.8. The State party is invited to submit its next periodic report, which willbe considered as the third, by 31 August 2005.383

Violence against Minority Womenin the United KingdomA Report to the Committee on the Eliminationof Racial DiscriminationContents1. Preliminary Observations .............................................................................................................................. 3871.1 Applicable International, Regional, and National Law ..................... 3881.2 Race, gender and violence ............................................................................................................ 3882. General Observations on Racial Discriminationin the United Kingdom ....................................................................................................................................... 3903. Violence Against Minority Women in the Family ....................................................... 3923.1 Domestic Violence ................................................................................................................................... 3923.2 Marital Rape ..................................................................................................................................................... 3963.3 Forced Marriages ...................................................................................................................................... 3963.4 Crimes Committed in the name of Honour ........................................................... 3974. Violence Against Minority Women in the Community ....................................... 3984.1 Rape ................................................................................................................................................................................ 3984.2 Trafficking .......................................................................................................................................................... 3995. Women Asylum Seekers ...................................................................................................................................... 4016. Violence Against Minority Women Perpetrated by the State..................... 4027. Conclusions and Recommendations ............................................................................................... 403Concluding observations of the Committee on the Eliminationof Racial Discrimination: United Kingdom of Great Britainand Northern IrelandSixty-third session – 4-22 August 2003Consideration of Reports Submitted by States PartiesUnder Article 9 of the Convention .......................................................................................................... 411A. Introduction ............................................................................................................................................................ 411B. Positive aspects ..................................................................................................................................................... 412C. Concerns and recommendations ................................................................................................ 413385

United Kingdom1. Preliminary ObservationsThe submission of information on violence against women to theCommittee on the Elimination of Racial Discrimination forms part of theWorld Organisation Against Torture’s (OMCT) programme on violenceagainst women. One of the aims of this programme is to integrate a genderperspective into the work of the five “mainstream” United Nationshuman rights treaty-monitoring bodies and, to this end, this report willfocus on women from ethnic minorities in the United Kingdom and theirparticular vulnerability to violence.The need to integrate the human rights of women into the work of thehuman rights treaty bodies was stressed at the 1993 Vienna WorldConference on Human Rights 1 and reiterated in the Beijing Platform forAction adopted in 1995 by the Fourth World Conference on Women. 2 TheBeijing Platform for Action states that women belonging to minoritygroups and women in situations of armed conflict are especially vulnerableto violence and highlights the fact that women from racial or ethnicminorities often face multiple forms of discrimination. 3At its 56 th Session in March 2000, the Committee on the Elimination ofRacial Discrimination adopted General Recommendation 25 concerningthe gender-related dimensions of racial discrimination. 4 The GeneralRecommendation draws attention to the fact that women and men are notalways affected equally or in the same way by racial discrimination andnotes that “certain forms of racial discrimination may be directed towardswomen specifically because of their gender.” The GeneralRecommendation and the Reporting Guidelines issued by the Committeeon the Elimination of Racial Discrimination call upon States to providespecific information and disaggregated statistical data concerning the gender-relateddimensions of racial discrimination.The Final Declaration of the World Conference against Racism, RacialDiscrimination, Xenophobia and Related Intolerance notes that victimsof racism, racial discrimination and xenophobia “can suffer multiple oraggravated forms of discrimination based on other related grounds suchas sex…” and that “…racism, racial discrimination, xenophobia andrelated intolerance reveal themselves in a differentiated manner forwomen and girls, and can be among the factors leading to a deterioration387

Violence Against Women: 10 Reports / Year 2003in their living conditions, poverty, violence, multiple forms of discrimination,and the limitation or denial of their human rights.” The WorldConference recognized “the need to integrate a gender perspective intorelevant policies, strategies and programmes of action against racism,racial discrimination, xenophobia and related intolerance in order toaddress multiple forms of discrimination” as well as the need to “developa more systematic and consistent approach to evaluating and monitoringracial discrimination against women.” 51.1 Applicable International, Regional, and National LawThe United Kingdom ratified the Convention on the Elimination of AllForms of Racial Discrimination on March 7, 1969. However, the UnitedKingdom has not recognized the competence of the Committee on theElimination of Racial Discrimination to hear individual complaints underArticle 14 of the Convention. In addition, the United Kingdom has ratifiedthe following international human rights treaties: the InternationalCovenant on Civil and Political Rights (ICCPR), the Convention againstTorture, the International Covenant on Economic, Social and CulturalRights, the Convention on the Elimination of All Forms of DiscriminationAgainst Women (CEDAW), and the Convention on the Rights of theChild (CRC). The United Kingdom has not ratified the first OptionalProtocol to the ICCPR but has ratified the second Optional Protocol tothat treaty. Furthermore, the United Kingdom has not ratified the OptionalProtocol to CEDAW and has signed but not ratified the two OptionalProtocols to the CRC. Finally, the United Kingdom has signed but not ratifiedthe Protocol to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children Supplementing the UN Conventionagainst Transnational Organized Crime.The treaty establishing the European Communities, to which the UnitedKingdom is a party, provides in Article 13 that the European Council may,in coordination with the Commission and the Parliament, take action tocombat discrimination based on sex, racial or ethnic origin, religion orbelief, disability, age or sexual orientation. As a result, Council Directive2000/43/EC addresses the implementation in Member States of the principlesof equal treatment between persons irrespective of racial or ethnicorigin and specifically recognizes the need to “promote equality between388

United Kingdommen and women, especially since women are often the victims of multiplediscrimination.” 6 Additionally, the United Kingdom is party to theConvention for the Protection of Human Rights and FundamentalFreedoms of the Council of Europe, which entered into force onSeptember 3, 1953.At the national level, the United Kingdom has developed legislation tocombat discrimination based on race and sex, such as the Race RelationsAct 1976 (amended in 2000), the Race Relations (Northern Ireland) Order1997, the Fair Employment Act 1976 (amended in 1989), the FairEmployment and Treatment (Northern Ireland) Order 1998, the SexDiscrimination Act 1975 and the Sex Discrimination (Northern Ireland)Order 1976. The Race Relations Act 1976 covers discrimination in abroad variety of fields and it established the Commission for RacialEquality (CRE). 7 The CRE is under a duty to work towards the eliminationof racial discrimination, promote equal opportunity and good relationsbetween people from different races and monitor the working of theRace Relations Act, proposing amendments when necessary. 8The government of the United Kingdom, in 1997, appointed twoMinisters for Women, who are supported by a Women’s Unit, which functionsto promote women’s rights. 91.2 Race, gender and violenceOMCT notes that in its Concluding Observations, the Committee on theElimination of Discrimination Against Women expressed concern at discriminationagainst ethnic minority women in the United Kingdom andurged the United Kingdom to take measures to address both direct andindirect discrimination against this marginalized group. 10 OMCT regretsthat the United Kingdom does not address the gender-related dimensionsof racial discrimination nor does it discuss the connection between racialdiscrimination, torture and other forms of ill treatment in its combinedsixteenth and seventeenth report to the Committee on the Elimination ofRacial Discrimination (UN Doc. CERD/C/430/Add.3).For this reason, and as part of the goal of gender integration described inthe introduction to this report, OMCT’s women’s programme has chosento focus on the linkage between violence against women in the United389

Violence Against Women: 10 Reports / Year 2003Kingdom and racial discrimination. The report begins with a generaloverview of the situation in relation to violence and racial discriminationin the United Kingdom and then specifically addresses violence againstminority women. The report concludes with a series of recommendationsfor future action.2. General Observations on Racial Discrimination in theUnited KingdomAlthough the law in the United Kingdom is extensive in prohibiting racialdiscrimination, discrimination on the basis of race and ethnic origin persists.In the 2001 census, the categories of ethnic groups included: White(British, Irish, or any other White background), Mixed (White and BlackCaribbean, White and Black African, White and Asian, or Any otherMixed Background), Asian and Asian British (Indian, Pakistani,Bangladeshi, and Any other Asian Background), Black or Black British(Caribbean, African, or Any other Black Background), and Chinese orother ethnic group. According to the census, 7.9% of people identifiedthemselves as belonging to categories other than White and of that percentage,50.2% were from South Asia, 24.8% categorized themselves asBlack or Black British, and 5.3% identified themselves as Chinese. 11 Thecensus did not distinguish between asylum and non-asylum seekers andOMCT notes that persons applying for asylum in the United Kingdomalso face particular obstacles because of their minority status.The existence of several different minority ethnic groups in the UK preventbroad generalizations concerning discrimination experienced byminorities, 12 but nevertheless, each minority group appears to suffer fromcertain disadvantages. For example, in employment, in 2001, 5% of Whitemen were unemployed while minority men were unemployed at higherrates: Black African (13%), Black Caribbean (9%), Indian (7%), Pakistani(16%), and Bangladeshi (20%). 13 Employment of minority women variesgreatly between ethnic groups with Black African and Black Caribbeanwomen displaying high levels of employment, while Pakistani andBangladeshi women are less active in the labour market. 14 Additionally,evidence suggests that Black, Bangladeshi and Pakistani students displaydeclining levels of school achievement as their education progresses,390

United Kingdomdespite entering school with the same capacities as their fellow students. 15People from minority groups also generally live in more deprived areas ofthe United Kingdom, in particular more than 50% of Pakistani andBangladeshi households reside in the bottom 10% of deprived areas andover 33% of Black Caribbean households live in these areas. Ethnicminorities are also more likely to be homeless, with 49% of homelesspeople in London being people from ethnic minorities between June andSeptember 2000. 16Health is another serious area of concern regarding discrimination againstethnic minorities. Strong links between poverty and poor health mean thatpeople from ethnic minorities have greater obstacles accessing health servicesand receiving treatment. 17With regard to policing, Black people are eight times more likely to bestopped and searched than White people and Black people are four timesmore likely than White people to be arrested for a notifiable offense. 18Along these lines, an opinion poll showed that a third of people thoughtpolice officers discriminated on racial grounds and 18% of Black and15% of Asian persons claimed that they had experienced racism in theirdealings with the police or the criminal justice system. 19 Furthermore,people from ethnic minorities are more concerned about being victims ofcrime than White people. Specifically, Black and Asian people reportedbeing twice as worried about being physically attached and three times asworried about being insulted or harassed. 20Discrimination also exists against asylum seekers, often justified by politicians,such as the Home Secretary, who has characterized asylum seekersas “flooding” the United Kingdom. 21 Although immigration laws purportto apply the anti-discrimination principle, it is permissible for immigrationofficials to discriminate on the basis of nationality or ethnic or nationalorigin when it is authorized by a Minister. Although discrimination onthe basis of nationality is necessary in immigration law to differentiatebetween nationals and non-nationals of the concerned State, the allowanceof discrimination on the basis of ethnic and national origin as well presentsan overly broad provision which has been characterized as racialdiscrimination. 22 One example of how this provision can be used inappropriatelyis demonstrated in a Ministerial authorization which allowed discriminationin immigration decisions with regard to certain enumerated391

Violence Against Women: 10 Reports / Year 2003ethnic and national groups, which included Tamils, Kurds, Greeks, Roma,Somalis, Albanians, Afghans, and ethnic Chinese presenting a Japaneseor Malaysian passport. 23 This authorization was challenged as legitimizingracial discrimination and days before the case was to be heard incourt, the authorization was revoked by the Home Office. 24Between April 2001 and March 2002, reports of racially motivated crimesrose by 20%, with 3,728 cases of racially aggravated crimes being submittedby the police to the Criminal Prosecution Service. Of those cases,72% were prosecuted and of the cases that were prosecuted, 80% led to aconviction. 25 One report indicates that children who belong to ethnicminorities are more likely to be the victims of violence and bullying thanwhite children and that most perpetrators of racially motivated violenceare children and young people. 26 Additionally, there have been severalreports of racially motivated attacks against asylum seekers. 273. Violence Against Minority Women in the Family3.1 Domestic ViolenceAlthough some research has found that women from ethnic minorities arenot more likely to be victims of domestic violence, there are potential differencesin how women from ethnic minorities respond to such violence –e.g., whether they seek help from the police, community, etc., and howthey are treated by persons offering services and protection for domesticviolence victims. For example, one study revealed that half of Asian,African Caribbean and Arab women involved in the study waited up tofive years before seeking help for domestic violence. 28With respect to Asian women in particular, domestic violence is severelyunder-reported. 29 Additionally, it has been reported that Asian women aremore likely to suffer abuse by multiple family members in the home, notjust their husbands. One specialist shelter for minority women has indicatedthat about half of the clients referred to them were fleeing familyabuse, as opposed to those fleeing from abuse inflicted by partners or husbands.30 It is important to recognize that some of the most violent behaviortowards women on the part of family members is committed by otherwomen, in particular by mothers-in-law. 31392

United KingdomAnother report indicates that many Asian women commit, or attempt tocommit, suicide rather than seek help when they are victims of domesticviolence. Indeed, studies have indicated that young women fromBangladesh, Pakistan, India and East Africa, both those born in the UKand outside the UK, commit suicide at higher rates than the general population.32 Some of the reasons given by survivors for attempting suicide orcommitting self harm include: sexual and physical abuse, domestic violence,immigration issues, forced marriages, and racism. 33Minority women may face discrimination or other obstacles in accessingsupport services when they are victims of domestic violence. First, stereotypesof minority communities serve to normalize the violence (e.g., thenotion that Irish violence in the family stems from alcohol abuse) or disbelievethe victim (e.g., the notion that violence does not exist in the supportivenetworks of South Asian or Jewish communities), among otherdeleterious effects. 34Additionally, some service providers, exhibit direct racial discriminationwhen handling cases of domestic violence. This discrimination sometimesmanifests itself through a focus on other criminal infractions instead ofensuring protection for the victim. For example, immigrant women reportthat sometimes their uncertain immigration status seems more importantto the police than protection from violence. 35 Similarly, according to oneaccount, the police responded to an African-Caribbean woman whorequested intervention from the police to protect her from domestic violenceby checking the criminal record of the perpetrator. 36The opposite phenomenon is also problematic, where service providersand government officials refuse to denounce violence against women incertain communities for fear of appearing racist. 37 One service providerhas said “The fear of racism, the fear of seeming racist, actually makes …[services] respond in favor of abuse rather than looking at the women’ssituation and is she safe to go back.” 38 This non-intervention is sometimescharacterized as “respect” for culture, but it has the effect of silencing thiscrime even more than is already the case.Women from minority communities may also be hesitant to contact thepolice out of anticipation of racist attitudes. 39 For example, given that, asmentioned above, Black people are more likely to be stopped and arrestedby the police than White people, Black women may not see the police as393

Violence Against Women: 10 Reports / Year 2003offering a place of safety. In a related manner, women from communitiesthat have traditionally been discriminated against may be reluctant toreport domestic violence to the police for fear of reinforcing negative attitudestowards their community. 40Lack of English-speaking ability is another difficulty for some ethnicminority women, including immigrant women, in escaping violent homeenvironments. They are unable to read information about services availableto them, such as shelters and hotlines. Interpreters are also rarely presentat police stations and hospitals to assist women in making complaintsand receiving medical help. 41 Furthermore, sometimes a husband or otherfamily member acts as interpreter but, in fact, misrepresents the situationby, for example, asserting that the injuries that the woman has sustainedwere the result of an accident. 42 Thus, where an interpreter is needed, it isimportant to ensure that victim is comfortable telling her story to that personand that that person has no conflict of interest. The interpreter needsto be a professional, preferably, a woman, and ideally the interpretershould not be a family member.Immigrant women victims of domestic violence face particular obstaclesin accessing services. First, as mentioned above, for women who do notspeak English adequately, language will be a serious concern. Also,women with insecure immigration status often have no recourse to publicfunds. Unfortunately, because of a lack of resources, many shelters mustask the women who board there for rent and immigrant women are oftenturned away because they have no way to pay the necessary fees. 43Women who arrive in the United Kingdom to join their husbands are subjectto a one year probationary period (soon to be raised to two years). Ifthey leave their husband during this year, they will be deported. OMCT ispleased to note that the government has recently instituted a “domesticviolence concession,” which provides that victims of domestic violencemay apply for indefinite leave to remain, provided they can prove thatthey are a legitimate victim. Current permissible forms of proof include acriminal conviction against the husband, police caution or an injunction,or any two of the following: a police report, a letter from a general practitionerdoctor, hospital doctor or social worker, an undertaking given to theCourt by the abuser, or a report from a shelter caseworker. However, withthe anticipated lengthening of the probationary period to two years, many394

United Kingdomimmigrant women, who are unaware of the “domestic violence concession,”are in danger of remaining in violent relationships for fear of beingdeported. 44Domestic violence accounts for 25% of all violent crime in the UnitedKingdom 45 and incidents of domestic violence have constituted thelargest increase in violent crime since 1981. 46 Statistics indicate thatabout 1 in 4 women will experience domestic violence in their lifetime,while 1 in 10 women will be the victim of domestic violence each year. 47About half of all murders of women in the United Kingdom are committedby the partners of the victims (present or ex spouses, co-habitants orlovers). 48 Domestic violence is a vastly underreported crime because ofthe very sensitive nature of the violation. There are many shelters fordomestic violence victims in the United Kingdom, but still, there are notenough to accommodate the number of victims. 49Although the United Kingdom has initiated broad policies to combatdomestic violence, it appears that there exists no specific comprehensivelegislation addressing this crime. 50 In 1994, an InterdepartmentalWorking Party on Domestic Violence was established to coordinate anational and local response to this problem, in particular by improvingvictim’s services, encouraging coordination at the local level, and initiatingpublic awareness campaigns. This Working Party was replaced in1999 by the Interdepartmental Group on Violence Against Women andDomestic Violence. Besides these groups, the government has also commissionedstudies on the prevalence of domestic violence as well as bestpractices for its elimination. Some police departments have set upDomestic Violence Units to specifically handle complaints of domesticviolence. Furthermore, the Family Law Act 1996 provides a remedy tothose who have suffered or are suffering domestic violence to apply for a“non-molestation order” (personal protection order). The Protection fromHarassment Act 1997 provides both a civil and criminal remedy in applyingfor a restraining order. With respect to family proceedings, civil protectionis limited. Besides these civil remedies, it appears that undercriminal law, domestic violence in the majority of cases is treated undergeneral ‘common’ assault provisions.The Home Office produced a consultation paper in June 2003, whichinvites discussion on a wide variety of topics concerning domestic vio-395

Violence Against Women: 10 Reports / Year 2003lence, including: education and awareness raising, access to informationfor victims, protection for victims of and witnesses to domestic violence,operation of the homicide law in relation to domestic violence, and safeaccommodation and support systems available to victims. OMCT sincerelyhopes that the government will give serious consideration to the resultsof this consultation with a view to creating comprehensive legislation toaddress domestic violence.3.2 Marital RapeConsidering that minority women are subject to widespread violence inthe family, marital rape is another potential form of violence. Althoughthis crime, like violence against women generally, is seriously underreported,studies indicate that husbands and partners are the most commonperpetrators of rape in the United Kingdom. 51 Under the laws of theUnited Kingdom, marital rape is a crime. 523.3 Forced MarriagesThe problem of forced marriages has also been identified as a seriousconcern in the United Kingdom, with as many as 200 cases being reportedto the Foreign & Commonwealth Office each year and many incidencesof this crime remaining unreported. 53 One report gives an estimate of1000 forced marriages a year, with the observation that even with thishigher estimate, many incidents are never reported. 54Such marriages often involve abduction of a young girl as well as marryingher without her consent. In most circumstances, forced marriagesinvolve girls from South Asia who are sent to their country of origin, supposedlyfor vacation or to visit relatives, and then taken to her family’shome where she is informed that she is to be married. Often the girl is notallowed to leave the home or to have contact with non-family members.Additionally, if the girl has spent the majority of her life in the UnitedKingdom, she faces difficulties in communicating in the local language inorder to protect her rights. 55 Forced marriages also occur without either ofthe “spouses” crossing international borders, or with the husband arrivingin the United Kingdom to be married. 56 Women who are forced into marriageare often abused by their husbands and other family members.396

United KingdomThe restrictions on the girl’s freedom of movement and her potential lackof knowledge of the local language make it very difficult for her to giveinstructions about where she is or to contact local consular offices or localorganizations that may be able to help her. Also, because of the familialnature of this crime, some girls are hesitant to offer evidence incriminatingtheir family members, a situation that perpetuates the culture ofsilence surrounding several types of family violence. 57Reports indicate that women who seek protection from forced marriageshave faced a lack of action by the authorities. Police allegedly fail to takeaction to prevent or investigate forced marriages because of ignoranceregarding the issue, gender discrimination, or the perception that the issueis a private family matter. 58 Additionally, friends and boyfriends of girlswho have been sent away to be forcibly married face difficulties in obtainingassistance from the authorities. 59 The government established aWorking Group on Forced Marriage in 2000 60 and there appears to havebeen some efforts on the part of the government to raise awareness amongpolice officers of the problem of forced marriages. 61 However, it has beenobserved that the government dialogue on forced marriages has mainlyconcerned community leaders, who are most often male and conservative,that the government has shown hesitancy in taking action and publiclydenouncing the problem for fear of creating racial tensions, and that therehas been an overall lack of progress on this issue. 623.4 Crimes Committed in the name of HonourAsian women are also potential victims of crimes committed in the nameof honour when they act in a way that is inconsistent with cultural normsregarding women’s sexuality. One report indicates that within the last 5years, there have been at least 20 cases of killings in the name of honourin the United Kingdom. 63 Crimes committed in the name of honour arecommitted when a woman allegedly steps out of her prescribed socialrole, particularly with regard to her sexuality. The concept of family honouris central among some minority communities in the United Kingdomand the consequences of this concept can be grave for the women of thesecommunities, rising to the level of murder in some instances. One illustrativecase happened when a British-born Pakistani girl was forcibly marriedat age 16 to an older man, and then at age 19 became pregnant by her397

Violence Against Women: 10 Reports / Year 2003childhood sweetheart. When she refused to get an abortion and insisted ona divorce from her older husband, she was invited to a family dinnerwhere she was strangled by her brother while her mother held her down. 64This is only one of many cases where minority ethnic women have beenkilled in the name of honour in the United Kingdom. It is difficult forpolice to act on these cases as this violence is rarely reported. Also, aswith forced marriages, there is allegedly some hesitation on the part of thegovernment in addressing this because of their fear of appearing culturallyinsensitive. 65It is important to note that the concept of honour is also linked to the highrate of suicide amongst South Asian women in the United Kingdom. In aneffort to preserve family honour, some women will kill themselves, ratherthan disgrace the family by leaving a violent marital relationship.4. Violence Against Minority Women in the Community4.1 RapeMinority women may also experience the violence of rape differently thanwomen from dominant communities. Indeed, a survey of women asylumseekers concerning how safe they feel in the United Kingdom revealedthat almost half of the women were unaware that there were free servicesavailable to rape victims. 66 Therefore, efforts should be made to specificallyreach out to marginalized women in order to ensure that they arereceiving adequate support services and police response when they havebeen raped.A government report on violence against women notes that reported incidentsof rape have increased by 165% over the last decade while the convictionrate has decreased from 24% to 9%. 67 In the past year, reports ofrape have increased by 27%. 68 The British Crime Survey indicates thatreports of sexual violence constitute 5% of police recorded violence generally(with 9,008 rapes being reported in the previous year). The samesurvey revealed that about a quarter of all women feel “very worried”about being raped. 69 Other sources indicate that the number of womenvictims of rape could be as high as 1 in every 4 women and that over 90%398

United Kingdomof these victims never report the crime. 70 Sexual Assault Referral Centresreportedly offer the best support for rape victims, but there are only 7 suchcentres throughout the country. At local police stations, support for rapevictims is not consistently positive, with inexperienced or insensitive officersoften handling cases. 71In the United Kingdom, a rape is committed when a man has sexual intercoursewith someone who does not consent to such intercourse. This definitionincludes both females and males as potential victims and it includessex between spouses without consent. 724.2 TraffickingIt is also necessary to address the specific needs of trafficking victimswhen discussing violence against minority women. One report has recordedthe number of trafficking victims in the UK over the past five yearsknown to the police as 271, all of whom were foreigners. However, thereport also indicates that the true number of trafficking victims in theUnited Kingdom is much higher, recognizing the use of the UnitedKingdom as a transit country and the high proportion of foreign womenworking in the sex industry in the United Kingdom. Taking into accountof variety of factors, the report estimates that the number of traffickingvictims in the United Kingdom each year is as high as 1420. 73 Womenvictims of trafficking reportedly come from South East Asia (Thailand,Philippines, Malaysia, Hong Kong, and Singapore), Central/EasternEurope (Lithuania, Hungary, Ukraine, and Belarus), Africa (Nigeria,Ghana, Kenya, and Uganda) and Brazil. 74Typically, victims are lured to the UK from foreign countries relying onfalse promises of a job or other forms of security and when they arrive,their passports and other papers are confiscated and they are forced towork as prostitutes to pay off the cost of the voyage. Throughout thisprocess, victims are subjected to severe forms of physical and psychologicalviolence.Trafficking victims are unlikely to come forward to the police because ofan intense fear of the authorities instilled in them by the traffickers. Also,their lack of identification papers and subjection to mental coercion leaves399

Violence Against Women: 10 Reports / Year 2003them virtually imprisoned by the traffickers. Furthermore, the police areunlikely to detect trafficking victims because most police forces tolerate“off street prostitution,” which is where most trafficking victims end up. 75Thus, most police discovery of trafficking victims is accidental rather thanas a result of an investigation. 76It is reported that most trafficking victims are treated as illegal immigrants,rather than as victims of a crime. They are often sent back to theircountry within 24 hours of being discovered, where they are at risk ofbeing abducted by the same traffickers and brought back to the UK. Withno effective witness protection programme in place, it is difficult for traffickingvictims to ever feel safe in cooperating with the police. 77Additionally, little is done to prosecute traffickers as such prosecutionsrequire testimony from the victim and few victims are granted residencypermits to remain in the UK for the purpose of giving evidence. 78The government has not yet enacted any specific legislation criminalizingtrafficking in persons and prosecutions instead rely on a variety of lawswithin the Sexual Offences Act 1956 and abduction offences.Commentators note that these laws do not take into account the particularitiesof the crime of trafficking and urgently require modernization. 79In particular, it is difficult to prove the crime of trafficking because itmust be shown that the accused facilitated the entry of an illegal immigrant“for gain,” and oftentimes the proof of gain, namely the assets, is inanother country. 80 It has also been noted that the punishments for humantrafficking are too low and not in proportion with the severity of thecrime: for example, a person trafficking cocaine would be punished tobetween eight and fifteen years in prison while a trafficker in humans hasa maximum sentence of 7 years in prison. 81 In light of these problemswith the current legislative framework, OMCT welcomes the current draftbill being considered by the government to update and amend the SexualOffences Act, in order to specifically recognize and punish trafficking as acrime.However, OMCT is concerned at a pilot scheme launched by the HomeOffice on March 10, 2003 which proclaims that it will help traffickingvictims by providing them with sanctuary, but only if they have beenworking as a prostitute and only if they have been exploited on UK soil.Thus, victims trafficked for reasons other than prostitution and victims of400

United Kingdomtrafficking who are discovered upon entry to the UK, or who are in transitto another country, are not eligible for sanctuary. 82 For those who are temporarilyeligible for sanctuary, they have four weeks to decide whether tocooperate with the police and then, if they agree to give evidence, they areallowed to remain for another 6-12 weeks while the evidence they havegiven is “assessed.” However, it is not clear whether victims who haveagreed to cooperate will be granted a temporary residency permit afterthese initial 16 weeks. One NGO notes that this is contrary to period ofreflection which is recommended as a minimum standard in the Protocolto Prevent, Suppress and Punish Trafficking in Persons, EspeciallyWomen and Children. 835. Women Asylum SeekersIn the United Kingdom, there is a “dispersal” policy with regard to asylumseekers, which means that they are sent to various regions of thecountry with provision of support for food and other necessities through avoucher system. This system is coordinated by the National AsylumSupport Service (NASS). When a person applies for asylum, they are firstprovided with emergency accommodation, and then, if their claim isaccepted by the NASS, they are “dispersed” to the various regions of theUnited Kingdom. One report indicates that women asylum seekers whohave been dispersed are often placed in accommodation where men andwomen are mixed. Women from cultures that traditionally separate menand women are made very uncomfortable by these arrangements. This isparticularly problematic for pregnant women, who, in some cultures, arenot supposed to be seen by men who are not family members. Thismixed-sex environment has created a situation where many women do notfeel safe in their accommodation. 84 Many women (84%) interviewed forthe abovementioned report also report that they do not go out at night forfear of being attacked or harassed and 28% of the women had experiencedphysical or verbal abuse directed against themselves or their family members.85 For example, on March 15, 2003, a newspaper reported that awoman asylum seeker and her five children had their home attacked at11:00 pm as stones were thrown through the windows of the house. Theyhad experienced a similar attack in September 2002. 86401

Violence Against Women: 10 Reports / Year 20036. Violence Against Minority Women Perpetrated by theStateWomen prisoners are an increasing proportion of the prison population inthe United Kingdom, with the number of women prisoners having risen155% between 1993 and 2000 (as compared to a 42% increase in thenumber of male prisoners). It has been noted that “women’s offending isoften linked to social exclusion and women committing crimes are usuallythose experiencing economic and social deprivation.” 87 In this context, itis interesting to note that women from ethnic minorities represent a disproportionatepercentage of the women’s prison population. 88 TheCommittee on the Elimination of Discrimination Against Women noted in1999 its concern about the proportion of minority women in prison andthe potential links between the crimes they have committed and their situationof poverty.Additionally, it is reported that many women prisoners are survivors ofdomestic violence and child abuse and that few services are offered toassist women in handling histories of abuse. 89 Women prisoners are alsoinfected with HIV/AIDS at rates 13 times higher than the general population.90Drug testing in women’s prisons has been characterized as degradingtreatment by one report which describes that women must urinate in frontof a prison officer. 91 There have also been hundreds of complaints filedfor sexual harassment, which are being investigated. One prison officerwas suspended in 1998 after having been accused of rape and three casesof harassment of the detainees. Another officer was fired for havingbribed a prisoner with food and cigarettes to make her take off her clotheswhile he watched and masturbated. 92Additionally, according to a report resulting from an inspection of detentioncenters in the United Kingdom, in one detention center, Haslar, only10% of the detainees felt safe and the inspection team could not concludethat the detention center provided a safe environment. The inspectionteam at this detention center also could not conclude that detainees weretreated with respect. 93402

United Kingdom7. Conclusions and RecommendationsAlthough the United Kingdom has much legislation attempting to addressboth racial discrimination and gender discrimination, these forms of discriminationpersist and are particularly manifest when violence againstminority women is examined. The policies and action plans of the governmentare important steps in eliminating discrimination against minoritiesand discrimination against women, but more firm efforts must be taken toensure that violence against minority women is investigated, prosecutedand punished, in accordance with international human rights standards.OMCT is concerned by the marginalized position of many people fromethnic minorities in the United Kingdom. The reasons behind this marginalizationmust be investigated and strategies to improve the situation ofminority people in both their public and private lives should be initiated.Such measures should include efforts to diversify the police force andraise awareness about institutional discrimination. These initiatives shouldfurther endeavor to decrease unemployment among ethnic minorities andimprove their living conditions. Also, particular attention should be paidto ensuring that children from ethnic minorities are able to achieve theirfull potential in school.With respect to asylum seekers, OMCT is troubled by the severe discriminationand xenophobia experienced by this group and recommends thatthe government undertake sincere efforts to raise awareness among thepublic in order to eliminate these discriminatory views. OMCT is particularlyworried about reports of violence against asylum seekers and reiteratesthe government’s obligation to protect asylum seekers on theirterritory from such violence.The lack of specific comprehensive domestic violence legislation in theUnited Kingdom is a subject of concern to OMCT. Such legislation isnecessary to ensure that the crime of domestic violence is investigated,prosecuted and punished with due diligence.OMCT is also gravely concerned about the low rates of reporting domesticviolence among minority ethnic women and specifically the high rateof suicide among Asian women. Such trends necessitate outreach effortsto minority women victims of domestic violence in order to ensure thatthese women know that such violence is criminal in the United Kingdom,403

Violence Against Women: 10 Reports / Year 2003that they should report such violence, and that they will receive culturallysensitive support services.OMCT is also particularly worried about immigrant women victims ofdomestic violence as they face additional obstacles in escaping abusiverelationships. With regard to English speaking ability, the governmentshould ensure that all information on services for domestic violence victimsis available in multiple languages, particularly those languages thatmost immigrant women speak. Efforts should also be made to assistimmigrant women in learning English at low cost.Additionally, immigrant women face serious difficulties in accessing shelterwhen they have left an abusive home since they often have little or norecourse to public funds because of their uncertain immigration status.OMCT urgently recommends that the government of the United Kingdomconsider making public funds available to immigrant women victims ofdomestic violence in order that they may find safe shelter.Furthermore, while OMCT welcomes the “domestic violence concession”to the probationary period that many immigrant women are subjected to,it is recommended that information concerning the concession and how toexercise it be targeted at immigrant women, especially taking into accountthe plans to lengthen the probationary period to two years.OMCT is concerned about reports that police sometimes treat immigrantwomen as criminals, focusing on their uncertain or illegal immigrationstatus, rather than the fact that they are victims of violence. Therefore,OMCT urges the government to institute trainings for police officers onspecific forms of violence against women, how immigration status canworsen this violence and culturally sensitive approaches to protectingimmigrant women from such violence.Indications that forced marriages are occurring in the United Kingdomand that UK citizens are being sent abroad for such purposes are veryconcerning to OMCT and the government is strongly urged to address thisproblem with vigilance. Such efforts to ensure that women and girls arenot forcibly married should include cooperation with the country wherethe girl is sent and effective responses for concerned family and friendswhen a girl has disappeared and they are fearful that she will be forced tomarry.404

United KingdomOMCT is also deeply troubled by reports of killings in the name of honour.The government must take definitive steps to combat cultural practices,such as killings in the name of honour, that constitute violenceagainst women and not shrink from such efforts behind the guise of culturalrelativism.The increase in reported rapes over the past year highlights the need formore attention to this form of violence against women. OMCT encouragesthe government to build upon best practices, for example by establishingmore Sexual Assault Referral Centres and creating a 24 hourhotline for rape victims. Additionally, it is important that women asylumseekers are aware of services available for rape victims, and that these services,such as counseling, may be necessary for victims even where therape did not occur within UK borders.OMCT notes that there is no comprehensive trafficking legislation in theUnited Kingdom. While OMCT welcomes current efforts to reform theSexual Offences Act, it insists on the need for comprehensive provisionson trafficking. One important step in combating trafficking would be theratification of the Protocol to Prevent, Suppress and Punish Trafficking inPersons, Especially Women and Children Supplementing the UNConvention against Transnational Organized Crime. OMCT would alsourge the government to consider using the Recommended Principles andGuidelines on Human Rights and Human Trafficking (UN Doc.E/2002/68/Add.1) as adopted by the Economic and Social Council in July2002 as the basis for the development of a comprehensive legislative andpolicy response to the issue.The government should develop appropriate services to support and assisttrafficked women and girls and additional support should be provided tonon-governmental organisations working with women and girls who havebeen trafficked. Further, police forces must adopt a proactive approach totrafficking, actively investigating suspicious prostitution operations, andnot only relying on happenstance information to discover such crimes.The United Kingdom dispersal policy with regard to asylum seekers oftenmeans that women and men have to share accommodation, a situation thatis very uncomfortable for women of some cultures and results in manywomen not feeling safe. OMCT recommends that the government adopt amore culturally sensitive approach to women asylum seekers and make405

Violence Against Women: 10 Reports / Year 2003more efforts to ensure not only that they are actually safe, but that anatmosphere of safety is created and felt by the asylum seekers.Furthermore, information regarding services for victims of violenceshould be provided to women asylum seekers as oftentimes they have fledsituations of conflict and have experienced violence.OMCT is equally concerned about reports of violence against women inprison and the fact that minority ethnic women represent a disproportionatepart of the women’s prison population. OMCT notes that the presenceof minority ethnic women in prison is potentially linked to their marginalizedstatus in society and encourages the government to investigate suchlinks. Further, OMCT insists on the absolute necessity of investigating allallegations of violence against women prisoners and holding the responsiblepersons accountable.Finally, OMCT would insist upon the need for the Government to fullyimplement the Convention on the Elimination of All Forms ofDiscrimination Against Women, the Beijing Rules and Platform forAction and the Declaration on the Elimination of Violence AgainstWomen as these instruments provide detailed protection for womenagainst violence in the family, in the community and at the hands of Stateofficials.1 Vienna Declaration and Programme of Action, June 1993, Part II, para. 42.2 Beijing Declaration and Platform for Action, Fourth World Conference onWomen, 15 September 1995, A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995), para. 38.3 Ibid., para. 48.4 Committee on the Elimination of Racial Discrimination, GeneralRecommendation No. 25, 20 March 2000, UN Doc. CERD/C/56/Misc.21/Rev. 3.5 World Conference against Racism, Racial Discrimination, Xenophobia andRelated Intolerance, Declaration, UN Doc. A/CONF. 189/12, 25 January 2002,paras. 2, 69 and 70.6 Council Directive, 2000/43/EC, (14).7 European Monitoring Centre on Racism and Xenophobia, Anti-discriminationLegislation in EU Member States: United Kingdom (2002).8 European Network Against Racism (ENAR), Shadow Report 2002, Racism andRace Relations in the UK, p. 23.406

United Kingdom9 Home Office, Government Policy Around Domestic Violence, available atwww.homeoffice.gov.uk/crimpol/crimreduc/domviolence/domviol98.html.10 UN Doc. A/54/38,paras.278-318.11 ENAR, Ibid., p. 6.12 It must be noted that Indian and Chinese people are doing relatively well comparedto other minority groups, particularly with regard to education and employment,although the reasons for this are unclear. Ibid., p. 5.13 Ibid., p. 7.14 Ibid., p. 8; see also BBC News, Concern over ‘police discrimination’ (May 27,2002).15 ENAR, Ibid., p. 8.16 Ibid., p. 10.17 Ibid.18 Ibid., p. 12.19 BBC News, Concern over ‘police discrimination’ (May 27, 2002).20 ENAR, Ibid., p. 20.21 Ibid., p. 4.22 Ibid., p. 17 (noting that “national and ethnic origin” are included within the ambitof the Article 1 definition of racial discrimination in the Convention on theElimination of All Forms of Racial Discrimination).23 Ibid., p. 18.24 Ibid.25 Ibid., p. 16.26 Ziggi Alexander, Department of Health, Study of Black, Asian and EthnicMinority Issues (1999), p. 60 (citing report by National Society for the Preventionof Cruelty to Children).27 ENAR, Ibid., p. 2028 Hitting Home, Domestic Violence, Facts and Stats, available athttp://www.bbc.co.uk/health/hh/wht03.shtml.29 Imkaan, A Place to Stay: Experiences of Asian Women and Children Affected byDomestic Violence and Insecure Immigration Status (Draft for consultation) (citingresearch conducted by the Economic and Social Research Council).30 Ashiana & Sheffield Hallam University, South Asian Women’s Experience ofDomestic Abuse: Pillar of Support (Oct. 2002), p. 15.31 Ashiana & Sheffield Hallam University, Ibid., p. 67.32 Khatidja Chantler et al., Attempted Suicide and Self-Harm (South Asian Women)(March 2001), p. 30.33 Ibid., p. 93.34 Janet Bastleer et al., Domestic Violence and Minoritisation: supporting women toindependence (2002), p. 52-53.35 Imkaan, Ibid.36 Janet Bastleer et al., Ibid., p. 83.407

Violence Against Women: 10 Reports / Year 200337 Ibid., p. 84, 99.38 Ibid., p. 84 (quoting a culturally specific domestic violence service).39 Ibid., p. 105.40 Ibid., p. 67.41 Imkaan, Ibid.; Hildegard Dumper, Refugee Action, Is It Safe Here?: RefugeeWomen’s experiences in the UK, p. 15.42 Ashiana & Sheffield Hallam University, Ibid., p. 70.43 Imkaan, Ibid. (citing research conducted by the Economic and Social ResearchCouncil)44 Ibid.45 Living Without Fear: An Integrated Approach to Tackling Violence AgainstWomen, available at http://www.womenandequalityunit.gov.uk/archive/living_without_fear/contents.htm.46 Khatidja Chantler, Erica Burman & Janet Batsleer, South Asian Women: exploringsystemic service inequalities around attempted suicide and self-harm, EuropeanJournal of Social Work, Vol. 6, No. 1, p. 37 (2003).47 Domestic Violence Data Source, Prevalence and Incidence, available athttp://www.domesticviolencedata.org/4_faqs/faq01.htm.48 Home Office, Government Policy Around Domestic Violence, available atwww.homeoffice.gov.uk/crimpol/crimreduc/domviolence/domviol98.html.49 Elizabeth A. Stanko, A Snapshot of the Impact of Domestic Violence in the UK,available at http://www.domesticviolencedata.org/5_research/count/count.htm.50 Liz Kelly, Specific Domestic Violence Legislation: Examples and Advantages(January 2001), available at http://www.domesticviolencedata.org/3_notice/forum/liz_legn.htm.51 Child and Woman Abuse Studies Unit, Information on Rape and Sexual Assault,available at http://www.cwasu.org/factsonrape.htm.52 Rape Crisis Federation, Police Reporting, Court Procedures and the Law, availableat http://www.rapecrisis.co.uk/police_reporting4.htm.53 Home Office, Dealing with Cases of Forced Marriage, Guidelines for Police,available at http://www.fco.gov.uk/Files/kfile/forcedmarriageguidelines.pdf.54 Hanana Siddiqui, Southall Black Sisters, Forced Marriage: An Abuse of Women’sHuman Rights.55 INTERIGHTS, Ain O Salish Kendra (ASK), & Shirkat Gah, Home OfficeWorking Group – Information Gathering Exercise on Forced Marriages (March2000), p. 2.56 Home Office, Dealing with Cases of Forced Marriage, Ibid.57 INTERIGHTS, Ain O Salish Kendra (ASK), & Shirkat Gah, Ibid., p. 2-558 Ibid., p. 5-6.59 Ibid., p. 2.60 Hanana Siddiqui, Southall Black Sisters, Ibid.61 See e.g., Home Office, Dealing with Cases of Forced Marriage, Ibid.62 Hanana Siddiqui, Southall Black Sisters, Ibid.; Khatidja Chantler, Erica Burman& Janet Batsleer, Ibid., p. 40.408

United Kingdom63 Council of Europe, Parliamentary Assembly, Committee on Equal Opportunitiesfor Women and Men, Crimes of honour (June 2002).64 Jason Burke, Lover, honour and obey – or die, The Observer (October 8, 2000).65 Ibid. (noting comment by Hanana Siddiqui, Southall Black Sisters); RefugeeWomen’s Resource Project—Asylum Aid , Women’s Asylum News, Issue 27,Nov./Dec. 2002, p.2.66 Hildegard Dumper, Ibid., p. 13.67 Living Without Fear: An Integrated Approach to Tackling Violence AgainstWomen, available at http://www.womenandequalityunit.gov.uk/archive/living_without_fear/contents.htm.68 BBC News, Rape victims face “postcode lottery” (18 July 2003).69 Jon Simmons et al., Crime in England and Wales 2001/2002, available athttp://www.homeoffice.gov.uk/rds/pdfs2/hosb702.pdf, p. 61, 94.70 Child and Woman Abuse Studies Unit, Ibid.71 BBC News, Rape victims face “postcode lottery” (18 July 2003)72 Rape Crisis Federation, Police Reporting, Court Procedures and the Law, availableat http://www.rapecrisis.co.uk/police_reporting4.htm, and Criminal Justiceand Public Order Act 1994, available at http://www.legislation.hmso.gov.uk/acts/acts1994/Ukpga_19940033_en_15.htm.73 Liz Kelly & Linda Regan, Stopping Traffic: Exploring the extent of, and responsesto, trafficking in women for sexual exploitation in the UK (2000), p. 18-22.74 Ibid., p. 23.75 Ibid., p. 26.76 Ibid., p. 30.77 Ibid., p. 32.78 John Gibb, Sex and Slavery, Observer Magazine (February 23, 2003).79 Liz Kelly & Linda Regan, Ibid.; ECPAT (UK), What the Professionals Know: Thetrafficking of children into, and through, the UK for sexual purposes (2001).80 ECPAT (UK), Ibid., p. 11.81 Ibid., p. 32.82 Refugee Women’s Resource Project—Asylum Aid, Women’s Asylum News,Issue 31, April 2003, p. 1-2.83 Refugee Women’s Resource Project—Asylum Aid, Issue 31, Ibid., p. 5.84 Hildegard Dumper, Ibid., pp. 6, 11.85 Ibid., p. 12.86 Refugee Women’s Resource Project—Asylum Aid, Women’s Asylum News,Issue 30, March 2003, p. 6.87 The Fawcett Society, Women and the Criminal Justice System, available athttp://www.fawcettsociety.org.uk.88 Ibid.89 The Fawcett Society, Joining Up Services for Women Offenders at a Local Level:Report from the Gender and Justice Policy Network Seminar (November 26,2001), p. 9 (statement of Val Keitch, Women’s Policy Group, HM PrisonService).409

Violence Against Women: 10 Reports / Year 200390 Ibid., p. 26, Appendix 1.91 Elke Albrecht & Véronique Guyard, Prisons de femmes en Europe (2001), p. 166.92 Ibid., p. 167.93 HM Inspectorate of Prisons, Introduction & Summary of Findings: Inspection offive Immigration Service custodial establishments (April 2003).410

United KingdomCommittee on the Eliminationof Racial DiscriminationSIXTY-THIRD SESSION – 4-22 AUGUST 2003CONSIDERATION OF REPORTS SUBMITTEDBY STATES PARTIESUNDER ARTICLE 9 OF THE CONVENTIONCONCLUDING OBSERVATIONS OF THE COMMITTEE ON THE ELIMINATIONOF RACIAL DISCRIMINATION: UNITED KINGDOM OF GREAT BRITAIN ANDNORTHERN IRELAND1. The Committee considered the sixteenth and seventeenth periodicreports of the United Kingdom of Great Britain and Northern Ireland(CERD/C/430/Add.3), which were due on 6 April 2000 and 2002respectively, submitted as one document, at its 1588th and 1589thmeetings (CERD/C/SR.1588 and 1589), held on 6 and 7 August 2003.At its 1607th meeting, (CERD/C/SR.1607), held on 20 August 2003,it adopted the following concluding observations.A. Introduction2. The Committee welcomes the detailed report submitted by the Stateparty and expresses its appreciation for the constructive responses ofthe delegation to the questions asked during the consideration of thereport. Furthermore, the Committee welcomes the fact that non-governmentalorganizations were consulted in the preparation of thereport.3. While the Committee notes with appreciation that the State partyaddressed most of the concerns and recommendations raised in theCommittee's previous concluding observations (CERD/C/304/411

Violence Against Women: 10 Reports / Year 2003Add.102), it observes that the report does not fully conform to theCommittee's reporting guidelines.B. Positive aspects4. The Committee welcomes the Race Relations Amendment Act of2000, which strengthens the 1976 Race Relations Act by outlawingdiscrimination in all public authority functions, including the police,as well as the Race Relations Act (Amendment) Regulations of 2003,which widen the definition of indirect discrimination and shift theburden of proof from the victim to the alleged offender.5. The Committee commends the State party's efforts to address morestringently the issue of incitement to racial hatred, including the introductionof a mechanism whereby the Metropolitan Police will providea central advice point for all forces in England and Wales in relationto possible offences of incitement to racial hatred, as well as theincrease in the maximum penalty for incitement to racial hatred fromtwo to seven years' imprisonment under the Anti-Terrorism, Crimeand Security Act 2001.6. The Committee welcomes the Police Reform Act, which includesprovisions to create a new and more effective police complaints systemin England and Wales; the establishment of the PoliceOmbudsman for Northern Ireland; and the consultations in Scotlandon enhancing the independence of the Police Complaints System.7. The Committee welcomes the establishment of a CommunityCohesion Unit within the Home Office, tasked with carrying forwardthe Government's programme to encourage the building and strengtheningof cohesive communities.8. The Committee welcomes the establishment of the National AsylumSupport Service in 2000 as an important step in providing support toeligible asylum-seekers and ensuring that they can access necessaryservices.9. The Committee commends the State party's efforts to prepare aNational Plan of Action against Racism, in consultation with non-412

United Kingdomgovernmental organizations, in pursuance of the recommendations ofthe World Conference against Racism, Racial Discrimination,Xenophobia and Related Intolerance.10. The Committee takes note with satisfaction that St. Helena, theBritish Virgin Islands and the Cayman Islands will include a specificprohibition of racial and other discrimination as well as the necessaryenforcement machinery in their Constitutions.C. Concerns and recommendations11. The Committee takes note of the State party's position regarding thenon-inclusion of the full substance of the Convention within the Stateparty's domestic legal order and that there is no obligation for Statesparties to make the Convention itself part of their domestic legalorder. It is concerned that the State party's courts will not give legaleffect to the provisions of the Convention unless the Convention isexpressly incorporated into its domestic law or the State party adoptsnecessary provisions in its legislation.The Committee recommends that the State party review its legislationin order to give full effect to the provisions of the Convention in itsdomestic legal order.12. The Committee also reiterates its concern over the fact that the Stateparty continues to uphold its restrictive interpretation of the provisionsof article 4 of the Convention. It recalls that such interpretationis in conflict with the State party's obligations under article 4 (b) ofthe Convention and draws the State party's attention to theCommittee's general recommendation XV according to which theprovisions of article 4 are of a mandatory characterIn the light of the State party's recognition that the right to freedom ofexpression and opinion are not absolute rights, and in the light ofstatements by some public officials and media reports that mayadversely influence racial harmony, the Committee recommends thatthe State party reconsider its interpretation of article 4.413

Violence Against Women: 10 Reports / Year 200313. The Committee is concerned about the increasing racial prejudiceagainst ethnic minorities, asylum-seekers and immigrants reflected inthe media and the reported lack of effectiveness of the PressComplaints Commission in dealing with this issue.The Committee recommends that the State party consider further howthe Press Complaints Commission can be made more effective andcan be further empowered to consider complaints received from theCommission for Racial Equality as well as other groups or organizationsworking in the field of race relations.The Committee further recommends that the State party include in itsnext report more detailed information on the number of complaints ofracial offences received as well as the outcome of such cases broughtbefore the courts.14. The Committee remains concerned at reports of attacks on asylumseekers.In this regard, the Committee notes with concern that antagonismtowards asylum-seekers has helped to sustain support forextremist political opinions.The Committee recommends that the State party adopt further measuresand intensify its efforts to counter racial tensions generatedthrough asylum issues, inter alia by developing public education programmesand promoting positive images of ethnic minorities, asylumseekersand immigrants, as well as measures making the asylumprocedures more equitable, efficient and unbiased.15. While noting the rapid implementation in domestic law of theEuropean Race Directive, the Committee is concerned that, unlike theRace Relations Act, the amending regulation does not cover discriminationon grounds of colour or nationality. The Committee is thereforeconcerned that the emerging situation may lead to inconsistenciesin discrimination laws and differential levels of protection accordingto the categorization of discrimination (i.e. race, ethnic origin, colour,nationality, etc.), and create difficulties for the general public as wellas law enforcement agencies.The Committee recommends that the State party extend the amendingregulations to cover discrimination on the grounds of colour and414

United Kingdomnationality. In this context, the Committee also recommends that theState party consider introducing a single comprehensive law, consolidatingprimary and secondary legislations, to provide for the sameprotection from all forms of racial discrimination, enshrined in article1 of the Convention.16. The Committee is concerned about the application of section 19 D ofthe Race Relations Amendment Act of 2000, which makes it lawfulfor immigration officers to "discriminate" on the basis of nationalityor ethnic origin provided that it is authorized by a minister. Thiswould be incompatible with the very principle of non-discrimination.The Committee recommends that the State party consider re-formulatingor repealing section 19 D of the Race Relations Amendment Actin order to ensure full compliance with the Convention.17. The Committee is deeply concerned about provisions of the Anti-Terrorism Crime and Security Act which provide for the indefinitedetention without charge or trial, pending deportation, of non-nationalsof the United Kingdom who are suspected of terrorism-relatedactivities.While acknowledging the State party's national security concerns, theCommittee recommends that the State party seek to balance thoseconcerns with the protection of human rights and its internationallegal obligations. In this regard, the Committee draws the State party'sattention to its statement of 8 March 2002 in which it underlines theobligation of States to "ensure that measures taken in the struggleagainst terrorism do not discriminate in purpose or effect on groundsof race, colour, descent, or national or ethnic origin".18. While the Committee welcomes the initiatives taken for furtherreforms within the police force, including enhanced representation ofethnic minorities, it recalls its previous concerns about the disproportionatelyhigh incidence of deaths in custody of members of ethnic orracial minority groups.The Committee invites the State party to submit in its next periodicreport detailed information on the new police complaints system;the new Police Complaints Commission (IPCC) which will be fully415

Violence Against Women: 10 Reports / Year 2003operational from April 2004; the number of complaints involvingracial discrimination referred to IPCC, including deaths in custody;and the outcome of these complaints as well as the disciplinary measurestaken in each case. It also encourages the State party to adoptmeasures conducive to integrating the different ethnic and racial representationwithin the police force.19. The Committee is concerned that a disproportionately high number of"stops and searches" are carried out by the police against members ofethnic or racial minorities.The Committee encourages the State party to implement effectivelyits decision to ensure that all "stops and searches" are recorded and togive a copy of the record form to the person concerned. TheCommittee invites the State party to address this issue in more detailin its next periodic report.20. The Committee notes that the State party recognizes the "intersectionality"of racial and religious discrimination, as illustrated by the prohibitionof discrimination on ethnic grounds against suchcommunities as Jews and Sikhs, and recommends that religious discriminationagainst other immigrant religious minorities be likewiseprohibited.21. The Committee is concerned about reported cases of "Islamophobia"following the 11 September attacks. Furthermore, while theCommittee takes note that the State party's criminal legislationincludes offences where religious motives are an aggravating factor, itregrets that incitement to racially motivated religious hatred is notoutlawed.The Committee recommends that the State party give early considerationto the extension of the crime of incitement to racial hatred tocover offences motivated by religious hatred against immigrant communities.22. While reiterating its satisfaction in connection with the enactment ofthe Human Rights Act of 1998, the Committee notes that no centralbody has been established to implement the Act. The Committee considersthat the absence of such a body may undermine the effectivenessof the Act.416

United KingdomThe Committee refers to the earlier commitment of the State party toconsider establishing a Human Rights Commission in order to enforcethe Act and the possibility of granting such a commission comprehensivecompetence to review complaints of human rights violations, andrecommends an early decision in this regard.23. The Committee expresses concern about the discrimination faced byRoma/Gypsies/Travellers that is reflected, inter alia, in their higherchild mortality rate, exclusion from schools, shorter life expectancy,poor housing conditions, lack of available camping sites, high unemploymentrate and limited access to health services.The Committee draws the attention of the State party to its generalrecommendation XXVII on discrimination against Roma and recommendsthat the State party develop further appropriate modalities ofcommunication and dialogue between Roma/Gypsy/Traveller communitiesand central authorities. It also recommends that the Stateparty adopt national strategies and programmes with a view toimproving the situation of the Roma/Gypsies/Travellers against discriminationby State bodies, persons or organizations.24. The Committee reiterates its concern that besides theRoma/Gypsy/Traveller populations, certain other minority groups orindividuals belonging to them experience discrimination in the areasof employment, education, housing and health.The Committee urges the State party to continue taking affirmativemeasures in accordance with article 2, paragraph 2, of the Conventionto ensure equal opportunities for full enjoyment of their economic,social and cultural rights. Moreover, the Committee encourages theState party to submit in its next periodic report more detailed informationon achievements under the State party's programmes aimed atnarrowing the employment gap and improving housing conditionsamong different ethnic groups.25. The Committee recalls its general recommendation XXIX, in whichthe Committee condemns descent-based discrimination, such as discriminationon the basis of caste and analogous systems of inheritedstatus, as a violation of the Convention, and recommends that a prohibitionagainst such discrimination be included in domestic legislation.417

Violence Against Women: 10 Reports / Year 2003The Committee would welcome information on this issue in the nextperiodic report.26. The Committee regrets that no information on the implementation ofthe Convention in the British Indian Ocean Territory was provided inthe State party's report.The Committee looks forward to receiving in its next periodic reportinformation on the measures taken by the State party to ensure theadequate development and protection of the Ilois for the purpose ofguaranteeing their full and equal enjoyment of human rights and fundamentalfreedoms in accordance with article 2, paragraph 2, of theConvention.27. The Committee encourages the State party to continue to consult withorganizations of civil society working in the area of combating racialdiscrimination and during the preparation of the next periodic report.28. The Committee notes that the State party is currently reviewing thepossibility of making the optional declaration provided for in article14 of the Convention and invites the State party to give high priorityto such a review and to give favourable consideration to making thisdeclaration.29. The Committee recommends that the State party take into account therelevant parts of the Durban Declaration and Programme of Action,and that it include in its next periodic report updated information onthe action plan that it is in the process of drafting in order to implementthe Durban Declaration and Programme of Action at nationallevel.30. The Committee recommends that the State party's reports be madereadily available to the public from the time they are submitted andthat the observations of the Committee on these reports be similarlypublicized.31. The Committee recommends that the State party submit a combinedeighteenth and nineteenth periodic report, due on 6 April 2006, andthat the report address all points raised in the present concludingobservations.418

This publication forms part of OMCT’s Violence againstWomen Programme, which focuses on integrating a genderperspective into the work of the United Nations human rightstreaty monitoring bodies.It compiles ten alternative country reports on violence againstwomen which OMCT submitted in the year 2003 to thefollowing five United Nations human rights treaty monitoringbodies: three country reports to the Committee against Tortureon Cameroon, Colombia and Turkey; two country reports tothe Human Rights Committee on Estonia and Mali; twocountry reports to the Committee on Economic, Social andCultural Rights on Brazil and Russia; two country reports tothe Committee on the Rights of the Child on Bangladesh andEritrea; and one country report to the Committee on theElimination of Racial Discrimination on the United Kingdom.World Organisation Against Torture (OMCT)P.O. Box 218, rue du Vieux-Billard1211 Geneva 8SwitzerlandTel. 0041 (0) 22 809 49 39Fax 0041 (0) 22 809 49 29E-mailURLomct@omct.orghttp://www.omct.orgThe World Organisation Against Torture (OMCT)wishes to thank the European Commission andthe Interchurch Organisation for DevelopmentCooperation for their support for OMCT’sViolence against Women Programme.